IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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fliotographic 

Sciences 

Corporation 


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23  WIST  MAIN  STRUT 

WnSTIt,N.Y.  UStO 

(716)«7a-4S03 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  IVIicroreproductions  /  institut  Canadian  de  microreproductions  historiques 


:\ 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


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to 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 
D 
D 
D 
D 

n 

D 
D 

[zr 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  peilicul^e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  gtographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
RellA  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serr^e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intirieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  aJoutAes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsqu'i  cela  Atait  possible,  ces  pages  n'ont 
pas  MA  filnr.Aes. 

Additional  comments:/ 
Commentaires  supplAmentaires: 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  normale  de  filmage 
sont  indiqute  ci-dessous. 


r~1   Coloured  pages/ 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagtes 

Pages  restored  and/oi 

Pages  restaurtes  et/ou  peiiiculAes 

Pages  discoloured,  stained  or  foxei 
Pages  d6color6es,  tachet^es  ou  piquies 


I — I    Pages  damaged/ 

I — I    Pages  restored  and/or  laminated/ 

r~~|    Pages  discoloured,  stained  or  foxed/ 


□    Pages  detached/ 
Pages  d6tach6es 

r~^  Showthrough/ 
U—l   Transparence 

I     I    Quality  of  print  varies/ 


D 
D 


Quality  in6gale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplimentaire 


Only  edition  available/ 
Seuie  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  ref limed  to 
ensure  the  best  possible  image/ 
Les  pages  totaiement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  AtA  filmtes  A  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


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This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  f llmA  au  taux  de  reduction  indlquA  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


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12X 


16X 


20X 


a4X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exempiaire  film6  fut  reproduit  grAce  A  la 
g6n*rositA  de: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shell  contain  the  sy  -ibol  — ^  (meaning  "CON- 
TINUED"), or  the  s/rnbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  images  suivantes  ont  At*  reproduites  avec  le 
plus  grand  soin.  compte  tenu  de  la  condition  at 
de  la  nettetA  de  l'exempiaire  fiimi,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  oont  la  couverture  en 
papier  est  imprimAe  sont  filmAs  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'iilustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmto  en  commenpant  par  la 
premiAra  page  qui  comporte  une  empreinte 
d'impression  ou  d'iilustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 

Un  dos  symboles  sulvants  appa'-jttra  sur  la 
dernlAre  image  de  cheque  micnofiche,  selon  le 
cas:  le  symbols  -^  signifie  "A  SUIVRE",  le 
symbole  ▼  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc..  peuvent  Atre 
filmte  A  des  taux  de  r6ductlon  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  il  est  film*  h  partir 
de  Tangle  supArleur  gauche,  de  gauche  A  droite. 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1  2  3 


1 

2 

3 

4 

6 

6 

32X 


Q.  'Xiii> 


CI 


THE 


i 


C.  7i7i' 


AMERICAN 


•->•'    0 


CRIMINAL  REPORTS. 


A  SERIES  DESIUNED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMrOKTANT 


^/O 


CRIMINAL    CASES 


DETERMINED  IN 


THE  FKI)EI{AL  AND  STATE  COURTS  IN  THE  UNITED  STATES, 

AS  WELL  A3 

SELECTED    CASES, 

Important  to  American  LAWTEiia, 

FROM  THE  iiNGLfSII,  IRISH,  SCOTCH  AND  CANADIAN 
I,AW  i^El'ORTS, 


NOTES  AND    REFERENCES. 


BY 

JOHN  GIBBONS,  LL.  D., 

Or  the  Chicaoo  Bar. 


Vol.  V. 


CHICAGO: 

CALLAGIIAN  AND   COMPANY, 

Law  Book  Publishers. 

1880. 


Dlu   ^  , 


Entered  according  to  the  Act  of  Congress,  In  the  year  eighteen  hundred  and  eighty  six,  by 

CAI.LAGHAN  AND  COMPANY, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


J 

/ 


DAVID  ATWOOD, 

PniNTER  AND  STKRKOTYPEB, 
UADISON,  WIS. 


TABLE  OF  CASES  llEPORTED. 


A. 

PAOE. 

Anderson  v.  State COl 

Anderson  v.  The  State 44;j 

Angelo,  State  v 63 

B. 

Ballard  v.  State 30 

Bartley,  Coin,  v 32^ 

Bean  v.  The  Stati- ■iit 

Boswell,  State  v ICG 

Bradley  v.  Tlie  State CU) 

Bradshaw  v.  Tlie  State 409 

Bush,  People  v 450 

Butler,  State  v 20G 

0. 

Carr  v.  State 438 

Ciusey  and  another,  Peoi>K>  v 318 

Chapman,  State  v 100 

Cline  V.  State 57 

Coady,  Re-?,  v 90 

Colgate,  State  v 71 

Collins,  Com.   v 345 

Cox  and  llailton,  The  tjueen  v. .  140 

m 

Dan,  State  v 93 

Dennis  v.  State 469 

Dickson  v.  The  State 297 

Dudley  and  Stephens,  The  Queen 
V 559 

Eppa  V.  The  State  517 

Este,  Com.  v 203 


F. 

PAGE, 

Fleming,  State  v 324 

Franklin,  Reg.  v 377 

G. 

Garmiro  v.  State 238 

Gleason,  State  v 172 

Goodwin,  State  v 1 

Graff.  State  v 346 

viuidicl,  People  v 455 

II. 

Ilackett  V.  People 320 

Hanson  v.  State 625 

Ilarlierson,  State  v "45 

Ilardigan,  In  re    269 

Harris  v.  The  State 357 

Hart,  State  V 66 

Haskell,  Stjite  v 201 

Hayes,  Com.  v 215 

Hecox,  The  State  v 98 

Holmes,  Com.  v 348 

Hughes  V.  Peojile 80 

Hughes  V.  State 373 

Hunter  '".  The  State 336 

I. 

Ingram  v.  The  State 485 

Intoxicating  Liquors,  Com.  v...  627 

J. 

Johnson  v.  The  People 350 

Jones  V.  The  State 552 

TC. 

Kantler,  State  v 581 

Karvcr,  State  v 88 


1 


rt 


,/ 


VI 


Kcefer,  People  v. 
Kelly,  State  v. . . 
Kent  V.  People.. 
Kepper,  State  v. . 


AMERICAN  CRIMINAL  REPORTS. 

Poyer  v.  Village  of  DcsplaincH. 


PAGE. 

.  6 

.  343 

,.  406 

,.  594 


L. 


315 


Lane  v.  State 

Lawrence,  State  v 1*^2 

Lewis  V.  The  State 

Lowery  v.  Howard  

Lurch,  State  v 

Lyon,  People  v 


381 
273 

234 
10 


Preece  and  others.  Com.  v 
Price  V.  The  State. 


PAOE. 

.  573 

.  107 

.  385 


% 

Rcggel.  Ex  parte 

Rugg,  The  People  v, 


218 
247 


S. 


588 


480 
309 
303 
538 
622 

52 
292 
592 
299 

94 


Scott  V.  The  State 

Seelig  V.  State 

Shedd,  Com.  v <>• 


98 
029 


Sherwin  v.  People 

Shovlin  ot  al.  v.  Com. 
Sinclair,  Com.  v 


Mace,  State  v 

Mackey,  State  v 

Majors,  People  v ■•-^   j^,,,j^jj  ^,  ^^.^ 

Mayherry  and  another.  State  v. . 

McDonald,  The  Queen  v 

McKinney.  State  v 

McRae  V.  The  State 

Melick,  State  V 

Mercer  v.  The  State 

Mess,  People  v 

Miller  et  al. .  Com.  v 

Miller  V.  The  State 

Miller  v.  The  State 105 

Minich  v.  Pef)rlo 20 

Montgomery,  State  v 54 

Moss  . .  Com 379 

Muir,  State  V 599 

N. 

Nagle,  state  V '. 332 

Nixon,  State  v 307 

0. 

Ormiston  et  al..  State  v 113 


192 
41 


Smith  V.  People '»1» 


;!03 
Si)ies,  August,  and  seven  others, 

Peoi)le  V '^'^^ 

Stitz  v.State -^^ 

T. 

Taylor  and  Boynes.  Rip:,  v 109 

Tliomas  v.  The  Poople 127 

Traviss  v.  The  Com 250 

Turner  v.  State 300 


Uhrig, Com.  v. 


823 


W. 


Walker,  State  v 465 

Waller,  State  V 031 

Wartner  v.  The  State 17H 


Panton  v.  The  People 425 

Parker,  State  v 339 

Patterson,  Com.  v 329 

Pellsv.  TheState 90 

Peters,  State  v 591 

Pierce,  Com.  v 391 

Potgieser,  The  City  of  Chicago  v.  579 


Weaver  v.TlieStat*'...  . 

Welch  V.  State 

Williams,  Stale  V 

Williams  v.  State 

Williams  v.  The  State., 
WMnslow  v.  The  State. 

Wood  v.  State 

W'oodward  v.  State. . . . 
Wooten,  Ex  parte 


366 
4.50 
242 
513 
013 
43 
123 
210 
181 


Wright,  Com.  v 571 

z. 

Zimmerman,  People  v 84 


TABLE  OF  CITED  CASES. 


A. 

PAOE. 

Ableman  v.  Booth,  31  How.,  506 2528 

Adams  v.  State,  09  Ind.,  SU 3« 

Albers  v.  Wliitney  et  al.,  1  Story,  310. .    Mfi 

Alexander  v.  People,  W\  111.,  !Ni AM,  131 

Alibez,  I'enplo  v.,  49  Cal.,  4.'i3 4!U 

Allen,   People   v.,    1    Parker,   Criin.  R. 

(N.  Y.),  4.15 75 

Allen  V.  State,  r>\  Ind.,  401 1*) 

Allen  V.  Till-  State,  10  Ga.,  85 4r> 

Allison  V.  Com.,  3  Out.,  17 2(M 

Alonzo  V.  The  State,  1 T,  Tex.  ft.  App. ,  .37S    SO  1 

Anibro.se  V.  State,  ft  Ind.,  .Til 81 

Amos  V.  Mcl'amber,  134  Mass.,  8.5 3'J3 

Andereoii,  Stat<;  v  ,  3  Nev.,  S.'iO Ki 

Anderson  v.  Stjite,  (m  Ala.,  .Vkl '£i9 

Anderson  v.  Stjite,  31  Ark.,  3.")" 430 

Andrew  v.  Dieterieh,  14  Wend.,  31.. 17,  18,  19 

Andrews  v.  State,  48  A!  i.,  (iCi 04 

Ann  V.  State,  11  Humph.,  1.50 403 

Annesley  v.  Anplesea,  17  St.  Tr.,  1130. . .   149, 

1.56,  1.58 
Armour  v.  The  State,  3  Humph,  379.  .101, 104 

Aspinall,  ReR.  v.,  3  Q.  n.  I)lv.,  48 03 

Atchinson  v.  Hartholow,  4  Kan.,  134 176 

Austin  V.  Swank,  9  Ind. ,100 4-.5 

Avery,  Reg.  v.,  8C.  &  P.,  5'.H> 144,  147,  160 


B. 


Bain  v.  State,  74  Ala.,  38 47 

Baker  V.  CJordon,  S3  Inil.,  201 167 

Baker  v.  The  People,  3  t'owen,  CM IHO 

Baldwin,  Refjina  v.,  8  Adol.  &  K.,  168.  . .     176 

Baldwin  v.  Brieker  m  Ind.,  331 .536 

Bank  v.  Kinsey,  .5  Ala..  0 .V)8 

BarlMtr  v.  SUate,  39  Dliio  St.,  6(10 .58,  .59 

Barfleld,  The  State  v.,  8  Iredell  (N,  C), 

814 436 

Barker,  State  v.,  64  Mo.,  882 108 

Barnett,  State  v.,  3  Kan.,  3,50 I(i8 

Barney,  Com.  v.,  10  Cush.,  480 101,  638 

Barron  v.  Mayor,  etc.,  7  Pet,  34;l 167,  311 

Bartlett  v.  Stute,  38  Ohio  St.,  660 39 

Bassette  v.  State,  101  Ind.,  8,5 ^m 

Bate.s,  State  v.,  10  Conn.,  378 335 

Bawcom  v.  State,  41  Tex.,  101 65 


PAGE. 

Baxter  v.  People,  3  Cilm.,  368 a55 

Bazley,  Re.K  v.,  3  Kasfs  P.  C,  571 355 

Beale  v.  The  State,  .5;)  Ala.,  460 07 

Beaver  v.  Taylor,  1  Wall..  (^7 440 

Herker  v.  Sant.-r,  80  111..  .596 .\58 

Behreiult.  In  re,  S3  Fed.  Rep.,  600 S31 

Bemis,  The  People  v.,  10  N.  W.  Rep.,  704  TM 

Ben  V.  State,  33  Ala.,  0 75 

Benliam,  State  v.,  7  Conn  ,  414 73 

Bennct  v.  State,  13  Ark..  601 &31 

Benton  V.  State,  31)  Ark.,  338 38 

Bethel's  Case,  Salk.,  3 18 878 

Blelby,  State  v..  31  Wis.,  804 631 

BiKKs  V.  The  State,  30  (ia..  ?3:} 389 

Binfleld  v.  State,  15  Neb.,  4,SU 505 

Binns  v.  State.  6(i  Ind.,  43S ,533 

Blair,  Com.  v.,  136  Mass.,  40 405 

Blake  v.  Hailey,  16  (iray,  .VJl  551 

Boas,  People  v.,  03  N.  Y.,  .554 4.56 

Bob  V.  T!ie  State,  33  Ala.,  ,560 368 

Bohamiim  v.  Com.,  8  Bush  (Ky.l,  481  .. .  435 
Bohannon  v.  The  State,  14  Texas  Ct. 

App.,  371 470 

Bollman   and   Swartout,    Ex  parte,  4 

Craneh,  lOi) 3T8 

Bond,  Kx  parte.  30  Amer.  Rep.,  21 3^5 

Book,  X"nited  States  v.,  3  Craneh,  C.  C. 

894 'xm 

Boone  Co.  Bank  v.  Wallace,  18  Ind.,  83  .  4.55 

Booth,  United  States  v..  31  How.,  50«i. . .  288 

Bosworth,  Com.  v.,  113  Mass.,  800 84 

Boucher,  Rex  v.,  4  C.  &  P.,  .563 93 

Boyer,  Com.  v.,  7  Allen,  30li 43:1 

Boy  kin  v.  Perry,  IJones,  Law  (N.  C), 

38.5 ,53i 

Boyle  V.  The  State,  07  Ind.,  ;«3 437 

Bradford,  Com.  v.,  136  Mass.,  43 306 

Brady,  Pt'iinsylvania  M.  Co.  v.,  14  Mieh,. 

8(H .531 

Brady,  United  States  v.,  3  C'rim.  Law 

Maff.,  69 J71 

Bragle,  People  v.,  86  Hun,  378 19 

Bray  v.  State,  41  Tex.,  561 65 

Brennan  v.  The  People,  15  111.  ,518 437 

Brettun,  Com.  v.,  100  Mass.,  806 340 

Bridges  v.  Kendall,  ,58  Misi.,  833 558 

Bridwell,  State  v.,  36  La.  Ann.,  859 437 

Briggs,  People  v.,  50  N.  Y.,  553 508 


via 


AMERICAN  CRIMINAL  REPORTS. 


./ 


PAOE. 

Brimllon,  Reglna  v.,  9  Car.  &  Pnj-ne, 

3«6 '"'* 

Britton  V.  State,  10  Ark..  I!ft9 f-SO 

Brotherton  v.  People,  7.)  N.  Y.,  150 4r>6 

Brown  v.  Buanl  of  Levee  Com'rs,  SO 

Miss., 408 Ifi" 

Brown  v.  Duffim,  00  Iowa,  103 870,  aill 

Brown,  State  v.,  31  Me.,  .WJ 3-.!7 

Brown,  United  States  v..  i  Cranch.  (".  ('., 

894 »W 

Brown  v.  State,  .'55  Ala.,  133 106 

Brown  v.  State,  10  Ind.,  490 IPO 

Brown  v.  State,  SI  Ind..  113 .3.3S 

Brown  v.  The  State,  74  Ala..  47S 437 

Bryant  v.  State,  GO  Ga.,  .'KS 104 

Buchanan,  State  v.,  a  liar.  &  J.,  317 .. . .    1 1.l 

Buckner  v.  Coin.,  14  Bus^h,  00 414 

Bull,  Rex  v.,  1  Wils.,  93 170 

Bulliner  V.  People,  ft)  III.,  39 1 32 

Bull's  Case,  2  Kast's  P.  C,  572 35,5 

Buntain  v.  The  State,  13  Texas  Ct.  App., 

485 479 

Burford,  Ex  parte,  3  Cranch,  417 1 17,  878 

Burford,  Ex  parte  (Sup.  Ct.  Mich.),  19 

N.  W.Rep.,  170 177 

Burford,   John    Atkins,   Ex   parte,   1 

Cranch,  C.  C,  370 177 

Burke  v.  State,  00  Ga.,  I." 839 

Burke  v.  The  State,  2  Hnr.  &  J.,  426. .. .    ms 
Bums  and  Carey  v.  PeojJe,  1  Parker, 

Crim.  Rep.  (X.  Y.),  18> 494 

Bums,  Rex  v 91 

Burrows,  Rex  v.,  R.  &  M.  C.  C.  R.,  874. .    101 

Burst  V.  Wayne,  13  111.  OIH  (m 

Burton,  Rex  v.,  1  Stra.,  481 403 

Bush,  State  v.,  29  Ind.,  110 377 

Bushel's  Case 879, 288,  S91 

Button,  Reg.  v.,  11  Q.  B.,  939 138 

Butts,  Com.  v.,  134  Mass..  449 340 

Byme  et  al.  v.  The  State,  12  Wis.,  519  . .    020 

c. 

Cady  V.  Owen,  34  Vt.,  SOS ^45 

CaUler  and  wife  v.  Bull,  3  Dallas,  380. . .  187 

Calendine,  State  v.,  8  Iowa,  3S8 3U 

Callaghan,  Com.  v.,  2  Va.  Cas.,  400 125 

Cameron,  The  State  v.,  40  Vermont,  555  349 

Campbell  v.  Dwiggins,  SS  Ind.,  473 107 

Campbell,  People  v.,  30  Cal.,  312 404 

Campbell  v.  The  People,  10  III.,  17,. .  .487,  4;il 

Campbell  v.  The  State,  55  Ala. ,  80 308 

Campbell  v.  The  State,  10  Texas  Ct. 

APP-.SOO 359 

Canada  v.  Curry,  73  Ind.,  210 fi05 

Cancemi  Case,  18  N.  Y.,  188 450,  457 

Carlton  v.  Com.,  5  Met.,  1:32 343 

Carter,  State  v.,  aj  La.  Ann.,  1214 ,Sfli 

Carter  v.  State,  2  Ind.,  017 536 

Carr  et  al.  v.  State,  42  Ark.,  201 439 

Casey,  People  v.,  72  N.  Y.,  399 4,Vi 

Castle  V.  State,  75  Ind.,  146 51 


PAQK. 

Castle's  Case,  1  Hale,  P.  C.  (tst  Am.  cU.), 

658 101 

Castner  v.  Sliker,  .33  N.  J.  Law,  507 373 

Cavitt  V.  The  State,  15  Texas  Ct.  App., 

IflO 480 

Chaffee  t.  Soldan,  5  Midi.,  242 *M 

Chamberlin,  Regina  v.,  10  Cox,  C.  C,  480  402 

Chambcin  v.  People,  4  Scam.,  XVi 12!» 

Chandler  v.  John.son  et  al.,  39  Cla.,  85.  .  (KU 

Charlton  v.  Coombes,  32  L.  J.  (Ch.),  2H4  140 

149,  l.W 

Cheek  v.  The  State,  Xi  Ind.,  492 :«( 

Chemung  Canal  Bank  v.  Judson,4  Held., 

ii-M 285 

Childs,  City  of  Crete  v.,  1 1  Neb.,  857. .. .  504 

Chishulm,  Com.  v.,  !«)  Mtt.s8.,  213 3:B 

Choate,  Com.  v.,  105  Mass.  ,451 'AXi 

Church  V.  Engli.>ih,  HI  III.,  442 558 

Citizens',  etc.,  Ins.  Co.  v.  Short,  02  Ind., 

310 SO 

Clare  v.  State,  30  Md.,  ia5 im 

Clayburn,  Rex  v.,  Riiss.  &  Ry.,  300 104 

Clem  V.  State,  31  Ind.,  4S4 419 

Clem  V.  State,  42  Ind.,  420 51,  7.5, 491, 492 

Cleveland  Paper  Co.  v.  Banks,  15  Neb., 

-•0 803 

Clinton  v.  Estes,  20  Ark.,  216 440 

Cohn,  State  v.,  9  Nev.,  179 49 

Cole  V.  People,  81  111.,  210. . .  129 

Colgate,  State  v.,  5  Am.  Crim .  Rep,,  71 .  ai« 

Collberg,  Cora,  v.,  1 1't  Mns.s., :»» 406 

Colleran,  Reg.  v.,  Ir.  K.  7C.  L.,  877 92 

Combs  V.  State,  75  Ind.,  215 68H 

Conner  v.  Com.,  3  Bin.  iPa.),  38 177 

Connors  v.  People,  .">()  N.  Y.,  240 4,50,  •1,57 

Cook,  State  v..  .")2  Ind.,  .574 23!t 

Cook,  The  State  v.,  30  Kan.,  82 ,543 

Cook  V.  The  State,  MTexasCt.  App  ,90    481, 

482 

Cook  V.  Wood,  24  111.,  295 KiH 

Cooper,  Rex  v.,  5  Car.  &  P.,  5.'i,5 77,  79 

Cooper,  State  v.,  1  Green,  Law  (N.  J.), 

3«7 v,j 

Cooper,  State  v.,  13  N.  J.  Law,  301 490 

Copenhaven  V.  State.  14Ga.,8 4!)i 

Copenhaven  v.  .State,  15  Oa.,  2fti 7« 

Cordell  v.  State,  22  Ind.,  1 471 

Corlies,  Com.  v.,  3  lirewst.  (Pa.),  575..  115 

Cornelius  v.  State,  12  Ark.,  782 440 

Cornell,  The  People  v.,  10  Cal.,  187. ...  (i»l 

Corson,  State  v,,  59  Maine,  137 5!l0 

Cory  V.  Silcox,  0  Ind,,  .30 520 

Coster,  State  v.,  4  Am.  Cr.  R.,  109....  815 

Couch  V.  State,  03  Ala.,  1(3 i(i« 

Cowan,  State  v.,  29  Mo.,  .SSJ ho 

Cowen  V.  I'eople,  14  III.,  348 189 

Crawford,  The  State  v.,  11  Kan.,  38. . .  315 

Crawford,  The  State  v.,  60  Iowa,  318..  4211 

Creswell  v.  State.  14  Tex.  Ct.  App.,  1.  437 

Crick,  Regina  v.,  1  F.  &  K,  519 402 

Cromack  v.  Heathcote,  8  B.  &  n.,  4.  .142, 144, 
145,  146,  159,  IflO 


TABLE  OF  CITED  CASES. 


ix 


PAOE. 

Cronin,  People  v.,  ai  Cnl.,  101 83 

Crook,  Rogina  v.,  1  F.  &  F,,  B21 4(W 

Cropsey  v.  Averill,  8  Neb.,  IfiO BC3 

CufTee,  Com.  v.,  108  MnsB.,  S85 107 

Ciirley  v.  Com.,  3  Norris,  151 206 

Curtis,  Com.  v.,  11  Pick.,  Ii34 »t 

Curtis,  State  v.,  S!9  Kan.,  384 MO 

D. 

Dalloway,  Rppina  v.,  3  Cox,  C.  C,  273. .  403 
Damon,  Stattt  v.,  3  Tyler  (Vt),  3S7. . .  .75,  400 

Pnnforth,  The  State  v.,  3  Conn.,  113. .. .  138 

D'Ar^encour,  People  v.,  9,';  N.  Y.,  C31 . . .  4.10 

Darstv.  People,  M  111.,',™ 578 

Davidson,  State  v.,  80  Vt.,  377 45 

Davidson  v.  New  Orleans,  l»:i  U.  S.,  97..  108 

Davis,  KeR.  v.,  1 1  Cox,  C.  C,  503 00 

Davis,  State  v.,  41  Iowa,  311 28 

Davis  V.  State,  25  Ohio  St.,  .30!) 69 

Davis  v.  The  State,  14  Ind.,  sm 561 

Davis,  Tennessee  v..  KK)  V.  S.,  2.^7. . .  .107,  108 
Davison  v.  The  People,  !K)  III.,  fcil.   .427,  43(t, 

Oil 

D.iwson  V.  State,  .IS  Tnd..  478 377 

Day  v.  CrawfDrd.  13 (ia.,  rm 31 

De  Annan  v.  The  State,  77  Ala.,  10 43-,' 

Decki  r  v.  Mathews.  13  N.  Y.,  313  4.')S 

De  Lonj;ohanips,  Uespublien;  v.,  1  Dall., 

Ill 138 

Dennis,  James,  The  State  of  Indiana  v.  4?<J 

Dennis  V.  Sfati',  l(i3  Ind.,  143 451 

Dennison,  Kentucky  v.,  21  How. ,00... 221,  225 

Die!;,  People  v.,  ;J2  Cal.,  210 537 

Dickson,  The  State  v.,  0  Kan.,  20!) 6'I3 

Dixon,  Hex  v.,  3  Ihirr.,  1tiS7 1.59 

Dodd  v.  Morse,  91  Ind.,  .5-J2 000 

Doe  v.  Ilarri.s,  5C.  &  I'.,  rm 110,  IW) 

Donnelly,  In  ro,  .10  Kan.,  191 175 

Dooley,  State  v.,  0  Mo.,  1  Hi 102 

Doo  Woon,  In  re,  18  Fed.  Hep.,  898 231 

Dowel!  v.  Lahr,  97  Ind..  1  It; 270 

Downer,  Reg.  v.,  43  I,.  T.  (N.  S.),  4-15. ...  149 

Doyal  v.  State,  70  (!a.,  131 437 

Doyell,  People  v.,  +s  Cal.,  91 7,  9 

Doyle  V.  State,  17  Ohio,  •J2'» KiO 

Draper  v.  Saxton,  1 18  Mass.  ,427 332 

Drew,  Coin,  v.,  4  Mass.,  391 403,  403,  404 

Drew,  United  SUites  v.,  5  Mason,  28. . . .  00 
Drummond  v.  State,  4  Texas  Ct.  App., 

150 299 

Dryo  V.  The  State,  14  Texas  Ct.  App., 

185 479 

Dukes  V.  State,  11  Ind.,  B.57 471 

Dunham  v.  The  State,  9  Tex.  Ct.  App., 

*10 95 

Dutcher,  People  v.,  83  N.  Y..  210 17 

Dutell  V.  State,  4  Greene,  125 100 

Dwire,  State  v.,  25  Mo,  653 31 

Dwyer  v.  The  State,  12  Tex.  Ct.  App., 

633 479 


E. 

PAOE. 

Eastwood,  People  v. ,  14  N.  Y. ,  565 378 

Eaton,  Com.  v.,  15  Pick.,  273 621 

Edwards  v.  Elliott,  21  Wall.,  5.33 107 

Edwards  v.  SUit4?,  49  Ala.,  3;KJ 65 

EjjKers  v.  ERKers,  67  Iml. ,  401 589 

KtTKlesht,  Stjite  v.,  41  Iowa,  571 74 

Elder,  State  v.,  05  Ind.,  282 498 

Elliot  V.  Peirsol,  1  Pet., 3.'8 289 

Elliott,  Stat«  v.,  45  lowo,  480 28 

Elsee  V.  Smith,  1  Dowl.  &  R.  (Court  of 

King's  Bench),  97 177 

Emery,  Com.  v.,  8  Gray,  80 108 

Epps,  State  v.,  4  Sneed,  fi.53 83 

Epps  V.  State,  103  Ind.,  5.39 008 

Erwin,  People  v.,  4  Denio,  129 11 

Erwin,  State  v.,  29  Ohio  St.,  180 28 

Evans  v.  Fisher,  5  Gilm.,  453    554 

Evei-ett  V.  Grapes,  3  T.  R.  (N.  8.),  Q.  B., 

m<.i 578 

E wing  V.  Howard,  7  Wall .,  499 248 

F. 

Fadner,  Frederick  C,  The  People  v. . . .  aiO 

Faith  V.  State,  33  Tex.,  374 6.1 

Fai  hneh  v.  State,  24  Ind.,  77 138 

Fiirley,  Reg.  v..  2  0.  &  K.,  313 147 

Farrcn,  Com.  v.,  9  Allen,  m 405 

Karris  v.  Coin.,  14  Hush,  .371 415 

Fassctt  V.  Smith,  23  N.  Y.,  2.-)3.  .l.",  10,  17,  18, 

19,30 

Fassinow  v.  State,  89  Ind..  335 51 

Fel.hcr,  State  v.,  10  Lea,  3:!S 104 

Fcnton,  Rex  v.,  1  Lewin's  Cr.  Cas.,  179.  378, 

379 
Ferguson,  State  v.,  .35  La.  Ann.,  1043.  .889,  HO 

FcrKuson's  Case,  1  Lcwin,  1S1 402 

Fiddler  v.  State,  7  Humph.  (Tenn.),  508.  76 

I'inlcy  V.  Slate,  01  Ala.,  201 106 

Finn,  People  v.,  87  N.  Y.,  .^33 17 

Fisher,  Com.  v.,  17  .Mass.,  10 239 

Fisher,  RcRina  v..  8  Car.  &  P.,  182 40.3 

Fisher  V.  Com.,  1  Hush  (Ky.),  311   75 

Fisher  v.  Stiite,  77  Ind. ,  42  005 

Fisher  v.  The  People,  23  III.,  2S3 013 

Fisk,  Ex  parte,  1 13  U.  S.,  713 287 

Fitzgerald,  State  v.,  49  Iowa.  200 55 

Fitzgerald  v.  State,  4  Wis.,  398 166 

Fitzhugh,  State  v.,  2  Or.,  227 631 

Filzpatriek  v.  People,  98  111.,  2".9 Hi 

Fleetwood  v.  Com.,  4  Am.  C.  R.,  30..  ..40,  43 

Fletc-her  v.  Peck,  0  Crancli,  1.35 187 

Flynn,  Com.  v.,  3  Cush.,  .529 61 

Fockler,  State  of  Kansas  v.,  22  Kan.,  iVia  97 
Follett  V.  JefTeryes,  1  Sim.  (U.  S.),  1 .  .140,  149, 

154 

Foster,  Com.  v.,  128  Mass.,  317 348 

Fonts  V.  State,  8  Ohio  St.,  98 27 

Fowler,  In  ro,  4  Fetl.  Rei).,  303 233 

Fowler,  The  State  v.,  52  Iowa,  103 437 


m. 


li 


IM 


AMERICAN  CRIMINAL  REPORTS. 


PAOE. 

Fox,  Com.  ▼.,  7  Gray,  585 403,  403 

Fox,  State  v.,  15  Vt.,  88 ™«' 

Fox  V.  State  of  Ohio,  0  How.,  410 SI,  10" 

Franconla  Case,  8  Ex.  D.,  ()3 r>(*),  Mi 

Franklin,  Railroad  Co.  v.,  i3  Kan.,  74..    54-' 

Franklin  v.  The  State,  89  Ala.,  14 4.'«! 

Freelanil  v.  Peojrto,  IB  111 ,. 'ISO 404 

Freeman  v.  The  State,  11  "'ex.  Ct.  App , 

98 894 

Fray,  Com.  v.,  14  Wrisht,  31,') 807 

Fulknor  v.  State,  3  Hfi.Mk. , .'« H8 

Fuller  V.  Dean,  31  Ala.,  tj.-.4 3B8 

Fulmer  v.  Coiu'th,  1  Out.,  000 301,  308 

G. 

Gallasher,  Com.  v.,  10  Gray,  840 310 

Gallagher,  Com.  v.,  180  Masi .,  .'54 3 1« 

Oalvln  V.  State  ex  rel..  M  luil.,  .'il 478 

Gardner  v.  People,  3  Scam.,  Kl '£> 

Gartsido  v.  Outram,  SO  L.  J.  (Ch.),  113. .  140, 

1."),  l.-iS 

Garvoy's  Case,  7  Colo.,  3S4 S9i) 

Gates  V.  People,  14  HI.,  4.33 85 

Qedney,  People  v.,  17  N.  Y.  Sup.  Ct., 

151 101 

George  V.  State,  10  Neb.,  3IS 4.M 

Georgia  v.  Powers,  14  Oa.,  asrt .VkS 

Gibson  V.  State,  .3S  (la. ,  .571  1 !« 

Gilbert,  Regina  v..  1  Car.  &  K.,  81 104 

Giles,  Com.  v.,  1  Gray,  4ti(i 331 

Gill,  n»x  v.,  3  Baru.  &  Aid  ,  SiVI 180 

Gilmore,  People  v.,  80  Hun,  1 195 

Girdwood,  R.  v..  1  Leach,  148 98 

Givens  v.  Bradley,  3  Bibb,  198 5,58 

Gocrsen  v.  Com.,  10  Out.,  477 3S0 

Goodhue  v.  State,  94  III.,  .37 80 

Goodhue  v.  The  People,  94  111.,  51 13S 

Goodin  v.  State,  16  Ohio  St.,  3U 31 

Goodnow  V.  Hill,  185  Mass.,  ,587 .33> 

Goodwin  V.  State,  96  Iiul,  5.50 .3(a,  M9 

Gordon  V.  Cornea,  47  N.  Y.,  60S ,580 

Goucherv.  Patterson,  9»  HI.,  588 55s 

Grainger  v.  The  State,  5  Yerger  (Tenn.), 

459 4.35 

Gray,  People  v.  (Sup.  Ct.  Cal.),  6  Pac. 

Rep.,iMO 3(58 

Green,  Com.  v.,  1  Ashm..  889 40.3 

Green,  Com.  v.,  8  Pick.,  .'J;'0 oi4 

Green  v.  Cochran,  43  Iowa,  514 120 

Green  v.  People,  8  Colo.,  (i8 0I6 

Greene  v.  State,  17  Fla.,  609 477 

Greenough  v.  Gaskell,  I  My.  &  K.,  98  . .  143, 
146,  153,  153,  159 
Greenwood  v.  State,  6  Baxt.  (Tenn.), 

667 sj 

Griffin  V.  The  State,  80  Ga.,  498. . ... ..."  440 

Griggs  V.  The  State.  58  Ala.,  485 r^m 

Grimes,  Com.  v.,  10 Gray,  470 3 kj 

Growcock  V.Hall,  88  Ind.,  303 3.3S 

Gundy  V.  State,  63  Ind.,  538 '  arr 


rtSH 

31 
4,55 

!-'l 
147 
.V8 
S3!) 
41)3 
05 
(iO 
4^ 
4Ki 


4^5 
STJ 
404 


11. 

Pai;I!. 

Hall,  Com.  v.,  R5  Mass.,  305 081 

Hall,  Rex  v.,  Russ.  &  K.  ((T.  Ca.'i.),  463.    SOI 

Hall,  StaUi  v.,  .30  Me.,  107 ^. . . .    .387 

Hall  V.  The  State,  05  (ia.,  30  4.50 

Hullett,  Com.  v.,  103  Mass.,  4ri8 3 .'4,  405 

Hullock  V.  City  of  Portlaml,  s  Or.,  80. . .    533 

Hamilton  v.  Burcli,  'JH  Ind..  ^33 5.7 

Hamilton  v.  Peoi)!'",  80  Mii'li..  173 

Hamilton  v.  Stale,  30  Ind.,  8  0 

Hnnd,  Railroad  Co.  v.,  7  Knu.,  3-^9 

Hankins,  Reg.  v.,  3  C.  &K.,i-:3 

Hanlcy,  State  v.,  3.5  Minn.,  180 

Harding  v.  .State,  51  Ind.,  3.-.0 

Hurdi.ster.  State  v.,  .3S  Ark..  005 40; 

Harriiiinn  v.  .State,  3  G.  (ircene,  885 

Harris,  People  v.,  '..0  Cal.,  078 

IlarrLs,  The  State  v.,  1  ,Iones  (N.  C),  190 

Harris  v.  The  !-tite,  47  Miss.,  318 

Harrison,   lVi>i)le  v.,  1   Parker's  Crini. 

Rep.  (N.  Y.),3II 

Harrison  v.  Com.,  79  Va.,  .374 

Hntl-away  v.  Holmes,  1  Vt.,  405 

Hattebough,  State  v.,  00  Ind.,  383 

Hami,  People  v.,  44  Cal  ,  08 9 

Hawthorne  v.  The  State,  ,58  Mjss.,  778. .     4K5 
Ilawtliorne  v.  The  State,  01  Jli.ss.,  719. .    430 

Hayden.  State  v..  45  Iowa,  II 1 10,  .504 

Haydn,  Rex  v.,  3  Fox  .V  Smith,  379 140 

Haywanl,  Reg.  v..  8  C.  Sc  K.,  w.3l 147,  100 

Head  v.  Slate,  44  Miss.,  1 35 

Heard  v.  Heard,  8  (ia..  .3 <0 

Heath  v.  State,  101  Ind.,  518 519, 

Heller  t.  State,  S;J  Ohio  St..  583. . . . 

Henley,  State  v.,  30  Mo.,  .5(K) 

Hennessey,  State  v..  83  Ohio  St.,  .",30. . . .      75 
Hennessey  v.  People,  81  How.  I'r.  (N. 

Y.),8;W 77,79 

Hess  V.  State,  45  N.  Y.,  445 ,3,3;) 

Hilbers,  Rex  v.,  8  Chit.  R.,  103 ]r« 

Hill  V.  People,  1  Colo.,  130 414,  4i,';_  4.3. 

nines  V.  Driver,  100  Ind.,  315 3U3 

Hinkle  v.  Com.,  4  Da.^a  (Ky.),  518 70 

Hitchings,  Com.  v.,  5  Gray,  483 .580 

Hoke  V.  Henderson,  4  Dev.,  15 

Holbrook,  Cairo  &  St.  Louis  Railroad 

Co.  v.,  78  III.,  419 

Holcomb  V.  The  .State,  41  Texas,  I'a. . . . 
Holloway,  Regina  v.,  8  C.  &  K.,  913. . . . 

Holmes,  Com.  v.,  17  Mass.,  ;i30 572 

Holmes,  Com.  v.,  1 19  Mass.,  IftS aio 

Holmes,  The  State  v.,  .M  Jliss.,  1.53 38!) 

Holmes  v.  Jennison,  14  Peters,  540. .  83>,  33,3 

Holt  V.  State,  88  Oa.,  187 401 

Hong  Ah  Duck,  People  v.,  01  Cal.,  387. .    496 

Hood,  State  v.,  51  Me.  .303 gat 

Hope  V.  People,  S-S  N.  Y.,  418 3(J8 

Hopps  V.  People,  31  III.,  308 418 

Hopt  V.  People,  104  U.  S.,  031 eo 

Horneman,  State  v.,  10  Kan.,  45J 79 

Hoskina  V.  People,  &1  111.,  87 83 


430 

.v>a 

iSO 
080 
108 


180 

,5.58 
a59 
3(U 


TABLE  OF  CITED  CASES. 


XI 


PAGE. 

Ho\u<or  V.  StotP,  88  On.,  rs ;W 

Ilovfy,  lVi)i)If  v.,   If,'  N.  Y.,  .Vil d.W 

Tlo'.varil  v.  StiiM-,  i'l  <  "lilo  St.,  .'1!H) (liU 

Ilowanl  V.  Stulf.  r<n  Iiid.,  llx) 4SM 

Howiird  V.  The  Ktiitf,  H  Tex.  C't.  App.,  - 

447 ns 

Howe  V.  Stnte,  10  Iiid.,  I'.t.' 377 

!low«  V.  Thayer,  17  I'iek.,  itl rM 

Uubbnrd  v.  SUte,  7;!  Ahi,,  Kit KIO 

lIudelHOii  V.  Stale,  !I4  Iiid.l.'ll 010 

Hudflnn,  Coin,  v.,  It7  Mns.s.,  .'('15 BO 

Hudson  V.  Stnte.  1»  Tex.  ft.  App.,  l.'jl ...  7S 

IIiiBhos,  nex  V 883 

HiiRhes,  Stiitc  v.,  8  Ala.,  UV,> cno 

lliiira  Cftse,  Kelynj,',  10 400 

lliiniphreyvillo  V.  Culver  ct  nl,  7!1  111., 

485 rm 

HuinphrieH  v.  Pnvls,  1(V»  Iiul.,  S74 170 

Hurd  V.  People,  2"  Mirli..  m 4»J 

Hiirfndo,  I'eojjle  v.,  r.i  ( •«!.,  -.w 1(« 

JIurtndo  v.  California,  I  in  U.  S..  .110. . . .  1(W 

Hutchinson,  Stnte  v..  (Hi  Iowa,  ITH ','10 

Hutchison  V.  Conith,  1  Norrl.s,  178 301 

Hussey,  Com.  v.,  Ill  Mnsw.,  t:U 310 

I. 

InRrnm  v.  State,  7  Mo.,  !»03 031 

Intoxicating'  M<liior  Cases.  V.'."i  Kan.,  751.  3'iH 

Irvinev.  Wood,  ."il  N.  Y,  O'.'l 11 

Isaacs  V.  The  State,  CI  Texas,  171 43J 

Ivey  V.  State,  01  Ala..  W 104 

J. 

.Jackson,  Com.  v.,  13-i  Mass.,  10 SOO 

.Tnckson  v.  State,  1)  liul.  •'i^"l 75 

.laekson  v.  The  State.  .V>  Wis..  5S!) !I7 

Jackson  v.  The  State.  77  Ala.,  IS 131 

.lanu'S  V.  State,  ,"i  Jliss.,  .".7 (KX),  001 

.lenkins.  State  v.,  3i  Kan  ,  47!) W)l 

.lenness.  The  IN'ople  v..  .")  .Mich  ,  305 .'W5 

•T.  H..  StJiU-  v.,  1  Tyler  (Vt.i,  IH 177 

.lohn.  State  v.,  8  Ired.,  .-i:!!) 47 

.Tohnsoii,  Stnte  v.,  !t  Nev.,  178 Ki 

Johnson,  State  v.,  40  Conn.,  130 (iO 

Johnson  V.  People.  i,>  111.,  :in H.3,  129 

Johnson  V.  Stale,  7  Mo.,  IKll mt 

Johnson  v.  State,  .'i!!  A  la. ,  37 45 

Jones.  Rex  v.,  4  Viir.  A  P.,  yi7 75 

.lones  V.  AliKell,  !I5  Ind.,  370 .W) 

Jones  V.  People,  3  Colo.,  48 37 

Jones  V.  State,  05  (ia.,  .fiiK! 4."iO 

Judd,  Com.  v.,  3  MasH.,  339 115 

K. 

Kaine,  In  re,  14  How.,  103 334 

Kalb,  State  v.,  14  Ind.,  103 ,338 

Knllock  V.  Superior  Court,  ."jO  Cal.,  3at>.  1(« 

Heeler,  Stnte  v.,  3K  la.,  Wl .  45 

Kecnnn  v.  The  Peojile,  KM  III.,  385 477 

Keene,  State  v.,  50  Mo.,  357 430 


PAOR. 

Kcetcr,  State  v.,  80  N.  C,  473 iSlU 

Kel  y,  Com.  v..  10  Ciish.,  (1!) 885 

Kelly  V.  Jackson,  13  Ir.  Kip,  130 158 

Kel.soe,  Stnte  v.,  70  Mo..  .505 108 

Kennnrd  v.  Loiilslnna,  03  U.  S.,  480 168 

Kennedy,  State  v.,  01  Imr.i,  1!»7 110 

Kerkow  v.  Hauer,  15  Neh.,  107 505 

Kerr  v.  Slate,  30  Ohio  St  ,  (iU, . .    2H 

Klbs  V.  The  People,  81  111.,  .-(K) STtl 

Kilrow  V.  Com'th,  8  Norris.  l**!! 30i 

Kinckly  v.  Com.,  1  IJ.  Monroe  (Ky.),  301.  57» 

Kinj?,  State  v.,  31  La.  Ann.,  17ii 801 

King  V,  Eniden,  ()  Knst,  137 W 

KiiiK  V.  Groonibridge,  7  Car.  &  Pnyno, 

583 014 

KlnR  V.  King,  7  Mod.,  350 6.50 

King  V.  State,  40  Ala.,  311 45 

Kinnnninn  v.  KlnimiTian,  71  Ind.,  417...  68H 

Kitchen  v.  Moye,  17  Ala.,  301 .'08 

Kite  V.  Com.,  11  Met  .  .Vl .'. . .  .318 

Knipht  V.  Turipiand.  3  M.  &  W.,  loi . . . .  ]()0 

Koehler  &  Lnn^e  v.  Hill,  f,0  Iowa,  513. .  181 

Kwinerv.  State,  (Hi  Ind.,  313 180 

Kolb,  M.  &  !•:.  Hallway   Co.   v.,  73  Ala., 

3!Hi 106 

Kring  V.  Missouri,  107  U.  S.,  aSl 107, 168 


L. 


Lake  Erie,  etc.,  R.  R.  Co.   v.  Heath,  0 

Ind..  ,5.58 108 

Lnnil),  The  People  v.,  41  N.  Y..  ^lOO 48(5 

Lambert,  Peo|)le  v.,  17  ( 'al  ,  310 486 

Ijaiiiberfs  Casr,  !»  Lei^;|i.  ('^15 403 

Laiiiklnet  al.  v.  P.opl.',  ill  111.,  501 1.30 

Laiipr,  State  v.,  t:3  .Miiiiw,  315 303 

LniiKilon,  State  v.,  31  :Miiin..  310 587,  .588 

iJUige,  Ex  iiarte,  18  Wall.,  li;3,  .378,  381,  301. 

313 

I-arned  v.  Coin.,  13  Mete,  340 114 

Larrliiiore,  State  v..  Ill  .Mo.,  ;jl)l 338 

Laiiper  v.  The  State.  1 1  Ind.,  337 M\l 

Lavender's  Case,  3  llasl's  P.  C,  .500 3,55 

Lawlor,  State  v.,  3S  :\liiin.,  310 38 

Leach  v.  The  People,  .-3  III,,  318 437 

Learned,  State  v.,  17  Jliiiiii",  130 ,500 

Ledley  v.  SUite,  1  Ind.,  ,580 007 

Levy  V.  State,  0  Ind.,  381 81 

Lewis,  Missouri  v.,  lOI  U.  S.,  33 ](W 

Lewis,  Statt"  v.,  3  Haw  ks  (X.  C).  OS 70 

Lewis  V.  The  State.  4  Kan.,  3!)0 .547 

Lindley  v.  State,  II  Tex.  Ct.  App.,  3813. .    477 

Linney,  The  SUlto  v.,  51  Mo.,  40 4*1 

Lion,  Expnrt*',  0  Fed.  Rep.,31 334 

Llscoinb,  People  ex  rel.  v.,  00  N.  Y., 

5.50 s;5,  3H:1 

Loan  Ass'n  v.  Topeka,30\VaIl.,  0,55. .  .!(*,  180 

LoRnn,  State  v.,  1  Mo.,  .5.33 301 

Lopg  v.  People,  03  111.,  .508 25 

I-o^'gins  v.  The  State,  13  Tex.  Ct.  App., 

05 480 


Xll 


AMERICAN  CRIMINAL  REPORTS. 


PAOK. 

LoRue  V.  Com.,  2  Wright  (Pa.),  2(W JSI 

Lolimaii  V.  Peopio,  1  N.  Y.  (Comst.).  37!)  114 
Tajiik,  R.>x  v.,  4  C.  &  P.,  3:)8. .     .  .3iW,  401,  403 

Long  y.  State,  IK  Ind.,  ^'^l Ml 

Longneckor  v.  State,  21  Inrl.,  217 Sifl 

LooiK-y  V.  The  State,  10  Texas  Ct.  App., 

520 .^59 

Lord  Oeorge  Uordon's  Case,  Jlowell's 

State  Trials,  vol.  21,  p.  48fi B34 

I^rtcii  V.  State,  7  Mo.,  55 75,  31!) 

Lessen  v.  State,  ti2  Ind.,  437 377 

Lovell,  State  v.,  23  Iowa,  3JI 103 

Low's  Case,  4  Me.,  439 I(l(j 

Lum  V.  The  State,  11  Texas  Ct.  App., 

4*3 a,S,480 

Lyneh  v.  The  Economy,  27  Wis.,  09  ...    586 

Lyons  v.  Peopl(>,  OH  111.,  270 129 

Lytle  V.  State,  31  Oliio  St.,  190 59 

M. 

Macleod,  Repina  v.,  12  Cox.  C.  C,  531. .    403 

Macloon,  Com.  v.,  loi  Mass.,  1 4(r) 

Macloon  et  al.«!..  Com.  v.,  lOI  Mass.,  1 . . .  315 
Madden  v.  The  Stat*,  1  Kan.,  310. . .  ..547,  51S 
Maduska  v.  Thomas,  G  Kan.,  1.59. ...     COO 

Mahcr  v.  Peopio,  10  Midi.,  217 419,  4*3 

Maher  v.  Stato,  3  Minn,  411 fi", 

Mahcr  v.  The  Stiit«>,  10  Mich.,  212 3S9 

Majors,  People  v.,  05  Cal.  100 7,  .|!M! 

Malono's  Case,  49  (ia.,  215 ^.((j 

Mann,  State  v.,  Ired.  Law  (N.  C),  45 ....    177 

Marion  -v .  State,  10  Neb.,  .309 SOO 

Martin,  State  v.,  70  Mo.,  ;«7 103 

Marknss,  KeRina  v.,  4  F.  &  F.,  350 403 

Martin,  The  Stat«  v.,  4  Am.  Cr.  R.,  80. .     95 

Mason,  Com.  v.,  10.)  Mass.,  103 2)1,  231 

Mather,  Peopio  v.,  4  Wend.,  ^29 '  igs 

Matthews  v.  State,  55  Ala.,  187 4,-, 

Mayberry,  State  v.,  48  Me.,  218 115,  m 

Mayfleld,  Ex  parte,  (i3  Ala.,  203 '  5,57 

Mayor  v.Dechert,  33  Md.,  309 .^,80 

McAnnlly  v.  State,  74  Ala.,  9 40 

McCants,  Stat^i  v.,  1  .Speer  (S.  ('.\  .'LW, .     k;;) 

McCarney  v.  Pe(i,,le.  Ki  N.  Y. ,  4():t ]  1 

McCartliy,  Pooi)le  v.,  4S  Cal.,  ,5.->7 ['.    407 

McClaekey  v.  The  State,  6  Texas  Ct 

APP-«« .'  im 

McClean,  Com.  v.,  2  Pars.,  3i  3 jg; 

McCord,  Stale  v.,  8  Kan.,  233 [  «.( 

McDormond,  R.  v.,  Jebbs'  C.  &  P  Cas 

"8 ■;  fl2 

McDonald,  Com.  v.,  no  Ma.ss.,  405 007 

McGowan,  People  v.,  17  Wciud.  iN  Y  ) 

380 ^ 

McGowan  v.  State,  9  Yerg.,  m •«)< 

Mclntire  v.  Yownj?,  0  Blackf.,  4')0. .....'.    4^0 

McKcen  v.  The  State,  7  Tc^x.  Ct  Ann 
0.31 "■' 

McKeon  v.  People,  0  Col.,  3lo! . . . ..'!.'    4;^ 
McLaughlin,  Com.  v.,  12Cu8li.,Uia 13s 


P.\OK. 

McLauK'hlin,  Com.  v..  105  Mass.,  4fiO  ...      01 

MeLeod  Case,  3  Hill,  017 28tl 

McMullen  v.  The  SMte.  .VJ  Ala.,  .'■i3I ....     -.m 
McQuillen  v.  .State,  8  Smedes  &  M.,  .587    100 

Medlicott,  The  State  v..  9  Kan.,  257 M3 

Meiers  V.  State.  50  hid,  .331! 471 

Merediih  v.  Keiiiiard.  1  Xcb  .  319 ,501 

Merrick  v.  State,  («  Iml..  3JV .535 

Miller,  .State  v.,  29  Kan.,  43 TM 

Miller,  State  v.,  98  Ind..  70 34:) 

Miller  v.  The  State,  IS  Texas,  333 ;i'.H 

Miiiiiiis  V.  Stat*",  10  ( >lii(i  St.,  331 3S 

Mink,  Com.  v.,  13;J  Mass..  133 -m 

Mitchell,  Com.  v.,  117  .Mass  ,  431 liH 

Mitchell,  State  v,3S  Mo,,  .Mrt jj-js 

Mitchell  V.  State.  2  Ohio  St  .  3'.3 .5H 

Mitchell  V.  Th(!  State.  71  (ia..  13.S 3H1 

Moiiile  Sav.  Bank  v.  Fry.  liii  Ala  .  31S. . .      47 
Montgomery,  Slate  v.,  8  Kan.    3.')1..173.  174, 

1T,5 

Mooney  v.  People,  7  Colo.,  31H 31! 

Moore,  Com.  v.,  11  Ciisli..  0(K) 33;! 

Mooro  V.  Peopio,  II  How.  iT.S.i,  13.. HI,  85.  Wi 

Mooro  V.  People,  108  III.,  4S-1 4.-,| 

Mooro,  Rex  v.,  3  Hani.  iH'  Atlnl.,  181 .57r 

Mooro  V.  Stiite,  05  Ind.,  3^3 .'i.-js 

Mooro  V.  Stale  ex  rcl..  73  Ind..  :r).s isi) 

Moore  v.  The  Slate.  15  Texas  Ct.  .\i>i>..  I    479 

Morgan.  Ex  parte,  30  red.  l!i  p.,  3;)S 3:)| 

Morgan  v.  Slate,  35  La.  Ami..  393 •::'.:) 

Morgan  v.  State,  43  Tex..  33 1 tr> 

Moinington  v.  Morningtdii.  3  .1.  &  II 

fi»7 i^s 

Mor|)hin,  State  v.,  37  Mo..  .373 ,'jiii 

Morphy,  State  v.,  3:1  lnwa.  310 43;),  4.17 

Morris,  Hegiiia  v.,  10  Ccix,  ('.  i;.,  180. . . .     4!H 

MonLssey,  Slat<>  v.,  33  Iowa,  1,58 n; 

Morrow,  People  v..  Oil  Cal.,  1 13 ;j-,> 

Mo.se  V.  Stat<',  .30  Ala.,  311 4.-, 

Mosley,  Insurance!  Co.  v.,  8  Wall.,  037.     4|o, 

41W 

Mowrey  v.  Walsh,  8  I'ow.,  3.J8 i  - 

Miicklow,  Rex  v.,  1  Miiori',  100 ;iV) 

Miillihix  V.  The  I'l'dplc,  70  Cal.,  311..., 

."Muiikirs  V.  Watson.  9  Kan.,  OUS 

Miiiin  V.  Illinois.  Ul  L'  S.,  1 13 
.Murdock,  State  ex  rel.  v.,  .'■0  liiil.,  121,. 

Murphy,  The  .State  v..  0  Ala..  7t;5 

.Mui-|)liy  V.  Stale.  !I7  Ind..  579 

Myers  v.  .Slate,  nil  h,,!,,  .-irji 

Myrtle,  ht.  Louis,  etc.,  li.  AV.  Co.  v.,  51 
Ina.,.ViO 


013 

<lili> 
It.8 

i;h 
181) 

V3i 


538 


N. 

Neiliardt  v.  Kilmer.  13  Neb  .  .38 

Nelson,  Stale  v..  II  Ncv.,  .•)31  " 

Xel.son,  State  v.,  39  Maine,  3,:9 ,,]][ 

Nelson,  SluU-  Savings  luslitution  v  ,  49 

111.,  171 

Nelson.  Tho  Stuto  v,,  29  MQ.,m... '.,[[',    349 


sot 

.•13 
«3I 

B.Vt 


TABLE  OF  CITED  CASES. 


XlU 


I 


PAOE. 

Nelson  v.  Voree.  5"!  Ind. ,  455 805 

Newoomb,  Tlie  State  v.,  5«  Fa.,  33r> K>7 

Nicholas  v.  State,  H  Ohio  St.,  435 50 

Nichols,  Com.  v.,  !)J  Mns.i.,  l'J9 0:J1 

Noble  V.  The  Stato,  'ii  Ohio,  43 2!B 

Norman  v.  Ilcist,  5  Watts  &  Scrg.,  193 . .  188 
North  t'liicaRo  City  Railway  Co.  v.  Lake 

View,  lO)  111.,  207 578 

Non'cU  V.  Dcval.  .'lO  5to.,  S7-.3 «01 

Nott,  Com.  v.,  135  iMass..  209 107,  108 

Noyes.  Stato  v.,  25  Vt.,  415 1 15,  139 

NiiKcnt,  Stato  v.,  71  Jlo.,  130 3rtS 

Nulf,  Stato  v.,  15  Kan.,  401 173,  174, 175 

o. 

O'Conncll,  Com.  v.,  12  All™,  4.-.1 200 

<  >'(iara  v.  Ki'ariicy,  77  N.  Y.,  I'J3 193 

<  iKdon  V.  The  Stato,  15  Texas  Ct.  App., 

4.-)4 479 

(tlivo  V.  Stato,  1 1  Xcb..  30 .VIS 

o'Mara  ct  al.  v.  Com.,  2.")  1'.  K  S.,  ^M..  200 
O'Neal  V.  The  State,  14  Tc.\as  Ct.  App., 

.WS 481 

O'Neil,  Slat;'  v.,  9  \Vi>st.  Coa.st  Kep.,  l.'jS  417 
llrton,  Rej;.  v..  Sliorlhainl  Notes,  vol.  3, 

p.  3;jHl 148,  1.5C 

Ortwdn  V.  Com.,  2<i  V.  V.  S.,  415 200 

Overton  v.  Ro^its,  99  1  ml.,  .'■.9.'> 000 

Owen,  State  v.,  72  X.  C,  01 1 05 

Otten.s,  Slate  v.,  79  Mo.,  020 102 

P. 

Packard,  Retina  v.,  C.  &  M.,  238 401,  40!» 

Palmer,  .State  v.,  T>  Maine,  9  203 

Palmer  v  State.  15  Ind,  ;W« 377 

Park,  People  v.,  1 1  X.  Y.,  21 18 

Parker,  People  v.,  4  .lohns.,  424 101 

Parks,  E.\  parte,  93  U.  S.,  18 878,  283 

Pauletto  V.  Hriiwn,  40  Mo.,  52. 81 

Peabotly  v.  Kenton.  3  I!arl).  Ch.,  451 ....  18 

Peai-se  v,  Pearse.  1  l)e(l.  &  Sm.,  IS 148 

Peai-son  v.  Yewdall,  95  U.  S.,  2'.H 107 

Peete  v.  State,  2  l.ea  (Tenn.),  51.} 839 

Perris,  Com.  v.,  108  Jlass,  1 07 

Peterson  v.  The  State,  12  Tex.  Ct.  App., 

030 470 

Petrca,  People  v.,  92  N.  Y.,  ia"i 104 

Phelps  V.  IVople,  55  III.,  IHl 3.\5 

I'hilips,  Retina  v..  8  Car.  &  P.ayne,  730.  814 

Phillips  V.  Com.,  8  WrlKht,  197 307 

IMckford,  Re.\  v.,  4  C.  &  P.,  227 08 

IMerco  V.  Pickens,  10  Mass..  470 335 

llereon  v.  People,  79  X.  Y.,  421 457 

Ilffman  v.  State,  14  Ohio,  ,'>.'>,'i 59,  CO 

lllcher  v.  IVople,  10  Mich.,  142 1(M 

Pines  v.  Stati",  r*)  Ala  ,  IM  100 

Pitman  v.  Stnt(!,  22  Ark.,  2,51 440 

P  M.  Ii.  Co.  et  al.  v.  The  City  of  Chi- 

eoKO,  Wi  111.,  .•I;l4 5,50 

Polin  v.  State,  14  Nob.,  610 480,  608 


PAOB. 

Pollard  V.  Stato,  B3  Miss.,  410 424 

Pollard  V.  The  People,  09  111.,  148 427 

Pomeroy  v.  rftate,  94  Ind.,  90 007 

Pomeroy's  Lessee  v.  Bank  of  Indiana, 

1  ^Voll..  .597 5.31 

Pond  V.  People,  8  Mich. ,  1.50 104 

Poole,  ReRlna  v.,  Dearsly  &  Boll,  315. . .  204 

Porter,  Stato  v.,  31  Iowa,  131 422,  437 

Posey  V.  Beale,  00  Ala. ,  .32 55r 

Potgieser,  The  City  of  Chicago  v 579 

Potter,  State  v.,  88  Iowa,  5 .4 117 

Powell,  I'eople  of  New  York  v 186 

Powell  v.  Stato,  8  Ind.,  5.50 ..  378 

Powers,  In  re,  25  Vt.,  801 878 

Powers  v.  L'>aeh,  20  Vt. ,  270 545 

Powers  V.  State,  87  Ind.,  97,  IM 839,  580 

Pratt,  The  State  v.,  IlousUjn's  Delaware 

Reports,  219 8S8 

Pressley  v.  State,  19  da..  198 8T 

Priest  V.  State,  10  Neb.,  3!)3 385 

Prince,  Regina  v.,  L.  R.,  8  C.  C,  151 ... .  405 

Quitzow  V.  The  State,  5  Texas  Ct.  App., 

47 319 

R. 

Ralford  v.  The  State,  (W  fSa.,  072 891 

Randall,  Com.  v.,  4  (iray,  30 401 

Randal,  v.  State,  10  Wis.,  310 If4 

Randolph,  The  People  v.,  8  P.  C.  R.,  174  014 

Ray,  Pennsylvania  Co.  v.,  102  U.  S.,  151  4.39 

Ray  V.  Lister,  Andrews,  .'151 5.56 

Redman,  Stato  v.,  17  Iowa,  329 .'Ml 

Reed  v.  State,  88  Ind.,  3  (! 839 

Reid  v.  Miteholl,  93  Ind.,  409 875 

Reid  V.  Stato,  53  Ala.,  402 601 

RemmingUm  v.  State.  1  Or.,  281 192 

Reynolds,  Cora,  v.,  122  Mass.,  451 01 

Rice  V.  Stato,  8  Mo.,  501 39rt 

Richards  Regina  v.,  1  C.  &  K.,  !>.32 204 

Richardson  v.  The  State,  31  Tex.,  148. . .  38S 

Ridley,  Stato  v.,  48  Iowa,  370 110 

Rigg,  Stato  v.,  10  Nov.,  288 OS 

Rigmaidon's  Case,  1  Lewin,  180 40S 

Riley,  People  v.,  83  Hun,  587 195 

Rineman  v.  State,  84  Ind.,  80 *W 

Rippy  V.  The  Slate,  2  Head  (Tenn.),  817.  4  J5 

Ritzman  v.  The  People,  1 10  111.,  308 487 

Roach  et  al.  v.  The  People.  77  111,,  88. . .  420 

Robb,  In  re,  19  Fed.  Rep.,  20  831 

Robb  V.  Connolly,  111  U.  8.,  084 226 

Roberts,  In  re,  81  Fed.  Rep.,  138 831 

Roberta  v.  People,  10  Mich.,  401 60, 414 

Roberts  v.  State,  V  Ga.,  8 76 

Robinius  V.  .Uito,  03  Ind.,  8."» 83.S 

Robinson,  People  v.,  8  Parker,  Cr.  Rep., 

8*5 60 

Robinson,  Rex  v.,  ?*l,each,  749 99 

Robinson  v.  Dauchy,  3  Barb.,  80 18 


ffrr 


w 


HV- 


Ii 


XIV 


AJIERICAN  CRIMINAL  REPORTS. 


FAOE. 

Roby,  Com.  v.,  12  Tick.,  406 494 

Roe  and  wife  v.  Cliitwood.  30  Ark.,  210  0.32 

Rogers,  Com'th  v.,  1  S.  &  R.,  124 3i3 

Rogers  v.  Beaucliamp,  102  Ind.,  33. . . .  370 

Rollins,  State  v.,  ,'2  N.  H.,  528 ...  (i."< 

Rollins  V.  State,  02  Ind. ,  40 532 

Romero,  People  - ,  18  Cal.,  89 558 

Rosey,  The  State  v.,  7  Rich.,  484 138 

Rothrock  v.  Perkinson,  CI  Ind.,  39 214 

Rouse,  The  People  v.,  2  Mich.  N.  F.,  209  293 

Rowan  v.  Stat<j,  30  Wis.,  129 108 

Rowlands,  Reg.  v.,  17  Q.  B.,  071 92 

Rudolph  V.  Lanilworlen,  02  Ind.,  31 528 

RuBsel  V.  .Tackson, '.)  Hare,  Sif! 149, 151 

Russell,  State  v.,  ;J3  La.  Ann.,  135 27 

Rust,  Stiitev.,  31Kau.,509 69 


Saunders,  People  v.,  4  Parker,  Crim. 

Rep.,190 ..  .  494 

Scales  V.  The  State,  7  Texas  Ct.  App., 

301 481 

Schaffner  v.  State,  8  Ohio  St.,  043 320 

Schnier  v.  The  People,  23  111.,  17 427, 012 

Schryver,  The  People  v.,  4.'  N.  Y.,  1 . . . .  437 

Schweitzer,  State  v.,  27  Kan.,  49!) 5 

Scott,  The  State  v.,  4  Iredell  (N.  C),  409  432 

Scripps  V.  Reilly,  Xi  Mich.,  371 018 

Sculz,  State  v.,  5.')  Iowa,  028 398 

Badly  v.  Sutherland,  3  Dsp.,  302 33."> 

Seig  V.  Long  et  al.,  72  Ind.,  18 557 

Seitz,  City  of  Salina  v.,  16  Kan.,  143 328 

Selfridge,  Com.  v 427 

Sellers,  State  v.,  7  Rich.,  308 209 

Sellers  v.  Jenkins.  1)7  Ind.,  430 453 

Senior,  Rex  v.,  1  Moody,  340 402 

Serpentine  v.  State,  1  How.  (Miss.),  250.  2!)9 

Sessions  v.  Little,  9  N.  11.,  271 407 

Soverin  v.  People,  37  111.,  414 494 

Shafer  V.  Muninia.  17  Md.,  <&l 81 

Shaffer,  State  v.,  ."ii)  Iowa,  290 110 

Shaw,  People  v. ,  5  .lohns. .  330 239 

Shaw,  State  v.,  31  Me.,  ry£i jot 

Shay  V.  People,  22  N.Y.,  317 18 

Shepard,  Coin,  v.,  1  Allen,  .575 200 

Shepard  v.  Hull,  42  .Aluine,  677 6.18 

Shepherd  v.  Pc.iplt",  19  N.  Y.,  537 50 

Sherwin,  People  ex  rel.,  v.  Mead,  92  N. 

Y,41.5. 200 

Shorter  v.  The  People,  2  N.  Y.,  103 4,3;j 

Shover  v.  State,  10  Ark..  2,')9 «30 

Siehold,  Ex  parte,  100  U.  S.,  371 .  .273,  277, 288, 

200 

Simon  V.  Oratz,  2  Pen.  &  W.,  417 i«4 

Simons,  The  People  v.,  00  Cal.,  72 403 

Simpson,  Kex  v.,  Wilcock,  Med.  Prof., 

part  2,  ccxvii _'  403 

Sims  V.  The  State,  10  Texas  Ct.  App.,  131  480 

Slzemore,  State  v.,  7  .tonus,  2()ll 40,3 

Sloan,  Com.  v.,  58  Mass.  (4  Cush.),  53 . . . .  aW 


PAOR. 

Smith,  City  of  Cliicairo,  v.,  48  111.,  107. .  427 

Smith,  Com.  v.,  9  Mn.ss..  107 lOti 

Smith,  Com.  v.,  11!)  Mass..  30.5 107,  lOS 

Smith,  Kx  i)iirt\  2  Ncv..  3 10  ftJ 

Smith,  Kx  parte,  3  McLean,  121 334 

Smith,  Peg.  v.,  2  C.  .t  K.,  i'Hi 93 

Smith.  Rfgiiia  v.,  1 1  Cox,  C.  C,  21i> 405 

Smith.  l!ex  v.,  1  Phillips  &  Arnold  on 

Evidi e,  1  l.S 143,  147,  100 

Smith  V.  P('()i)lc,  -,'5  111.,  17 129 

Smith  V.  State.  ^'8  Ind..  3.'t Kii 

Smith  V.  State.  3.'!  Maine.  48 (VW 

Snow,  Com.  v.,  1 1  firay.  20 3:r> 

Snyder  v.  Stale.  .-)9  Ind..  10.-. 520 

Solanderv.  People.  2  Colo,  4S 37 

Sprague,  People  v..  ".3  Cal  .  191 31.  408 

Spiller,  Rex  v..  5  C.  &  P..  3T) 3i)8,  402 

Spilling,  Queen  v.,  2  Mooil.  &  Rnl).,  107.  403 
Squire,  Com.  v.,  12  Mass.  (1  Mete.),  2.-i8.V6,  7» 

StnckhouBe.  r,'n|,!,.  v.,  19  Mi.-h..  70 4.M 

Stackhonse.  The  State  v.,  21  Kan..  415. .  .M7 

Stnnilifer.  Stiit.-  v..  ."i  Port.  (Ala.),  .5-.'3. . .  492 

Stante  V.  Pricket.  1  Can'iv.  4%') Xi:> 

Stiiplesv.  Fail-child.  3  Comst..  41 28.5 

Staup  V.  Coin..  21  P.  F.  S.,  4.58 360 

Stehhins.  Coin,  v.,  8  Gray,  492 310 

Stephens  v.  Stiite 44.1 

Sterling,  Slate  v..  31  Town.  1 13 137 

Stevens  v.  V<m\.,  l\  IMclciilf,  211 021 

Stewart  v.  Pcojilc  '13  Alich.,  03 COl 

Stewart  v.  Slate,  |3  Ark.,  720 HA 

Stickinan,  P<'ople  v  .  31  Cal  ,21.5 93 

Stin.son  v.  People.  i:j  HI.,  ;i:io :j.m 

St.  Louis  V.  Stnt",  S  Keh.,  105, . .  .499,  502.  507 

Stockdale's  Case.  2  I.ewi'i.  220 405 

StolTer  V.  Tlie  state.  I".  Ohio  St.,  47 4:12 

Stokes  V.  People.  .W  N.  Y.,  177 415 

Stoltz  V,  Pe<ppl(>.  i  Seam.,  109 12!) 

Stone  V.  Pird.  ill  Kan.,  4f« 551,  001 

Stout  V.  Ilv'itt,  13  Kan..  232 W2 

Stout  V.  Stale,  no  Ind,  1 OOO 

Stratt'in  and   otlieiu,  Kex  v.,  21  How. 

bt.  Tr.,  122.) as 

Stratton,  Com.  v.,  114  Mass.,  3 '3 40-1,  405 

Stralton  v.  Pcojile.  5  Colo.,  270 86 

Sturne.v,  Reg.  v.,  r  Mod..  99 )85 

Suddis,  Uex  v..  I  i:a.st,  IliXI 878 

Sumner  V.  Crawford.  15  N.  IL,  410.   ...  *>4 

Sumner  v.  Slate.  5  lilackf.,  .579 508 

Suttim.  The  State  v.,4(illl,  494 138 

Sutton  V.  State,  .|1  Tex.,  515 OR 

Swan  V.  Com,  11)1  Pa.  St ,  318 699 

Swindall,  liegina  v.,  3  C.  &  K.,  3.30 408 

Symonds,  State  v.,  30  Me.,  l.'J2 16(1 

% 

Tarlilfi's  Case,  13  Wall.,  397 838 

T.irhox,  Com.  v.,  1  Ciish.,  00  ri?J 

Taylor,  People  v.,  2  Mieli.,  3.51 104 

Taylor  v.  Porter,  4  Uill,  140 im 


Te.it  V.  St 
Tessier  v. 
Tes.syinon 
The  W.,  S 
pie.  lOfi  ] 
Thomas,  C 
Thomas  v. 
Thomassoi 
Thompson 

Thompson 

Thompson. 

Thomp.son 

Thompson 

Thornton,  1 

Thornton,  f 

Tiehhoino 

Not<«.  ,521 

Tiernan  v. 

Timmin.s,  H 

Tobin  V.  Th 

Toram,  Con 

Townsend,  : 

Tracy,  Ex  ) 

Tniitt  V.  Thi 

Tucker  v,  II 

Tuekermnn, 

Tuffs,  Reg.  ^ 

Tumey,  Stat 

Tnread,  Vn\ 

K.  I).  Iji. 

Tiinier  V.  CV 

Turner  v.  Sti 

Twewly  v.  T 

Twitehell  v. 

Twitty,  Stat 

Tylney,  Reg, 


Underwood, 
Union,  etc., 

63 

United  State 

301  ... . 

Van  Steenbu 

R.,  39  ... . 
Vaughan  v.  ( 
Vaughan  v.  ' 
Veatch  v.  St 
Vincent,  Ex 
Votttw  V.  Dit 


Wmie,  Com. 

Wadge,  alias 

of,  10  Fed. 

Wadsworth  i 


TABLE  OF  CITED  CASES. 


XV 


m 


PAOE. 

Teat  V.  State,  BS  Miss.,  43!) 403 

TcssiiT  V.  Crowley,  Ifi  Neb.,  3r,9 500 

Tossyiiiond"8  Case,  1  Lewin,  109 402 

The  W.,  St.  L.  &  P.  K'y  Ct.  v.  The  Pco- 

I)lc.  KW  111.,  053 583 

Tluinius,  City  of  Olathe  v.,  80  Kan.,  833.  70 

Thonius  V.  The  State.  40  Texas,  CO avj 

Thoiiittsson  V.  Stiite,  \r,  Inil.,  449 3i7 

Thompson,  Com.  v.,  0  Jlass.,  134 398,  399, 

401 

Thompson,  People  v.,  41  N.  Y.,  6 4.50 

Thompson,  The  State  v.,  9  Iowa,  188. .. .  430 

Thomp.son  v.  ITiKKinbotham,  18  Kan.,  48  170 

TliDiiipsoii  V.  The  Stat»!,  30  Texas,  3i!6.  479 

Thornton.  Kx  parte, '.»  Tex.,  035 231 

Thornton,  Slate  v.,  'iT  Mo.,  300    80 

Tifhhorne   v.    Lushington,   Shorthand 

Note«,  5211  149,  157 

Tiernan  v.  Rinker,  102  U.  8.,  123 S8« 

TimmiiLS,  I{ex  v.,  7  C.  &  P.,  499 4a3 

ToliMi  V.  The  I'eople.   4  Am.  Cr.  R,  .555  95 

Torum,  Com  th  v.,  5  P.  L.  .1.,  290 301 

Townsend,  State  v.,  »1  N.  \V.  Rep.,  535  454 

Tracy,  Kx  parte,  '25  Vt., !« 272 

Tniitt  V.  The  SUitfl,  8  Tex.  Ct.  App.,  148  480 

Tucker  v.  lleimiker.  41  N.  II.,  317 018 

Tuckerman,  Com.  v.,  10  Gray,  173 200 

T\iffs,  RoK.  v.,  1  Den.  C.  C,  324 160 

Tuiiiey,  State  v.,  81  Ind.,  .5.59 214 

Turcnd,  United  States  v.  (U.  S.  C.  C, 

K.  I).  I.a.),  20  Fed.  Rep.. 021 177 

Tnmerv.  Com.,  80  Pa.  St,  73 424 

Tmiier  V.  State,  102Ind.,.l25 (K)!i 

Tweedy  v.  The  State,  5  Iowa,  4.3.J 437 

Twitchell  v.  Com.,  7  Wall ,  321 107 

Twitty,  State  v.,  I  Ilayw.,  102 104 

Tjiney,  Reg.  v.,  18  L.  J.  (M.  C),  30.  .144, 147, 

101 

u. 

Underwood,  State  v.,  37  Mo.,  825 468 

Union,  etc.,  Co.  v.  BiR-hanan,  100  Ind., 

83 863 

United  States  Exp.  Co.  v.  Lucas,  30  Ind., 

301 214 

V 

Van  Steenburgh,  People  v.,  1  Parker,  C. 

R-.39 18 

Vaughan  v.  Com.,  8  Va.  Cas.,  273 403 

VauRhan  v.  Meiilove,  3  Uin«.  N.  C,  408.  401 

Veatch  v.  State,  no  Ind.,  .581 471 

Vincent,  Kx  parU\  20  Ala.,  145 08 

Votaw  V.  Dichl,  68  Iowa,  075 60 

w. 

Wn<le,  Com.  v.,  31  Mass.,  89» 77,  70 

Wadge,  alias  Archer,  In  ro  Extradition 

of,  10  Fed.  Rep  ,'»> 231 

Wadnworth  v.  Hamshaw,  8  '}.  &  B.,  4,  n.  149 


PAGE. 

Walker  v.  Sativlnet,  98  U.  S. ,  00 168 

Walker  v.  State,  63  Ala.,  49 100 

V.'olker  v.  The  State,  14  Texas  Ct.  App., 

609 479 

Wallace  v.  State  of  IllinoiB,  63  111.,  451  97 

Wallahan  v.  The  People,  40  III.,  103. .. .  654 
Wanstead  Local  Board  v.  Hill,  13  C.  B. 

(N.8.),479   678 

War,  The  People  v.,  20  Cal.,  117 633 

Warehom  v.  State,  85  Ohio  St,  601 ... .  29 

Warren,  Com.  v.,  6  Mass.,  74 115 

Warren,  State  v.,  83  Me.,  30 98 

Wartner  v.  State,  108  Ind.,  51 870 

Washburn  v.  People,  10  Mich.,  385 175 

Watklns,  Ex  parte,  3  Pet.,  193  . .  .876,  28:},  284 
Watson,  Matter  of,  v.  Nelson,  69  N.  Y., 

5;)7 196 

Watson,  State  T.,  36  La.  Ann.,  148 435 

Watson  V.  The  State,  0  Texas  Ct.  App., 

237 294 

Webb,  Rex  v.,  1  Moody,  431 804 

Webb,  Rex  v.,  1  Mood.  &  Rob.,  405 898 

Webb  V.  State,  8  Texas  Ct.  App.,  115. . .  368 
Webb  V.  The  State,  6  Texas  Ct.  App., 

.590  359 

Webb's  Case,  8  Lewin,  190 408 

Webster,  Com.  v.,  5  Cash.,  295 404 

Webster  v.  People,  92  N.  Y.,  428 457 

Welch,  State  v.,  21  Minn.,  22 00 

Welch,  State  v.,  36  Conn.,  810 81 

Welch  V.  Stowell,  2  Doug.  (Mich.),  332. .  578 

Wellar  v.  People,  3  Mich.,  20 418,  428 

Weller  v.  The  State,  10  Texas  Ct  App., 

2(» 470 

Welsh  V.  People,  17  III.,  339 855 

Wentworth,  Com.  v.,  118  Mass.,  441 384 

Wheeler,  State  v.,  85  Conn.,  890 686 

Whelan,  Rex  v.,  1  Cr.  &  Dix.,  191 01 

Whet,  State  v.,  4  Jones  (N.  C),  819 104 

White,  State  v.,  14  Kan.,  688 70 

Whitehead,  Regina  v.,  8  C.  &  K.,  808..  408 

Whitehead  v.  Cora.,  10  Grot,  040 166 

Whitney,  State  v.,  7  Or.,  809 687 

Whitman,  C(  m  v.,  118  Mass.,  458 203 

Whitney  v.  State,  10  Ind.,  404 818 

Whitson,  People  ex  rel.  v.,  74  III.,  80..  891,  5.55 

Wilbiirn  v.  State,  81  Ark.,  801 106 

Wilkinson  v.  Leiand,  2  Peters,  657 189 

Willett,  Rex  v.,  0  Tenn  R.,  801 170 

Williams,  Com.  v.,  4  Allen,  687 831 

Williams,  Com.  v.,  105  Moas.,  02 815 

Williams,  Ex  parte 176 

Williams,  People  v.,  18  Cal.,  187 4<18 

Williams,  State  v.,  5  Port,  130 iflO 

Williams,  State  v.,  10  Humph.  (Tenu.), 

101 75,349 

Williams  V.  State,  6  Neb.,  831 604 

AVilliams  v.  State,  52  Ala.,  4!1 47 

Williams  V.  The  State,  ISTexasCt.  App., 

»» 299 

Williams  V.  The  State,  14  Ohio,  283 614 


f::^ 


f  \ 


;<  i 


!  m 


:-r  /■ 


XVI 


AMERICAN  CKIMINAL  REPORTS. 


PAQK. 

Williamson,  Rex  v.,  3  Barn.  &  Aid.,  583.  170 
Williamson,  Rex  v.,  8  C.  &  P.,  63".. . .  3W,  403 

WUson,  In  re,  82  Minn.,  145 583,687 

WUson,  State  T.,  6  Or.,  488 534 

Wilson  V.  People,  8  Colo.,  335 85,28 

WUsonv.  State,45Tex.,  76 75 

WUson  V.  The  People,  91111.,  337 439 

Wilson  T.  The  State,  45  Texas,  76 319 

Wiltberger,  United  States  r..  3  Wash. 

O.  C.,615 439 

Windsor  v.  State,  13  Ind.,  875 877 

Withers  V.  Buckley,  20  How.,  84 341 

Wixson,  People  v.,  6  Parker,  C.  R.,  121. .  11 
Womack  v.  State,  7  Cold.  (Tenn.),  409.  75 
Wong  Ah  Ngow,  People  v.,  51  Cal.,  161 .    464 

Wood,  Com.  v.,  4  Gray,  11 331 

Wood  V.  State,  92  Ind.,  269 471 

Woodard  t.  The  State,  9  Texas  Ct.  App., 

412 480 

Woodford  v.  People,  62  N.  Y.,  117 76,  79 

Woods  V.  State,  30  Ark.,  86 327 

Woods  V.  State,  63  Ind.,  353 683 

Woods  V.  State,  76  Ala.,  35 47 


PAOE. 

Woolen  V.  Whitacre,  91  Ind.,  502 600 

Wray,  State  v.,  73  N.  C,  853 328 

Wright,  Pittsburgh,  etc.,  R.  W.  Co.  v., 

80  Ind.,  286 388 

Wright  V.  People,  101  111.,  120 3J7 

Wynehamer  v.  The  People,  13  N.  Y.,  392  187 

Wynne  v.  Thomas,  Willes'  R.,  503 556 

Y. 

Yarbrough,  Ex  parte,  110  V.  ti.,  651 .  .283,  291 
Yates  V.  City  of  Milwaukee,  10  Wall., 

495 ;.    578 

Yerger,  Ex  parte,  8  Wall.,  98 878 

Yoakum,  People  v.,  53  Cal.,  570 496 

York,  Com.  v.,  9  Mete.,  93 410,411,  416 

Young  and  Stainsby,  State  v.,  8  Vroom, 

IM 120 

Yundt  V.  People,  65  lU.,  373 83 

Zschocke  v.  People,  OS  HI.,  187 355 


clsiii^hr 
ci<flite(| 
and  br 


AMERICAN 


CRIMINAL   REPORTS 


State  v.  Goodwin. 


(33  Kan.,  538.) 
Abduction:  Indictment  —  Joinder  of  counts  —  Clmnge  of  venue. 

1.  Change  op  venue. —  Where  the  venue  of  an  indictment  or  information 

is  ordered  to  bo  corrected  by  the  court,  under  section  281  of  Criminal 
Code,  tlie  clerk  of  the  district  court  in  which  the  case  is  pendin/;  should 
make  a  full  transcript  of  the  record  and  proceedings  as  wcil  as  the 
order  of  removal,  and  transmit  the  same,  duly  certified  under  the  seal 
of  the  court,  to  the  clerk  of  the  court  to  which  the  removal  is  directed 
to  be  made. 

2.  Indictment  — Two  or  more  felonies.— While  two  or  more  felonies 

can  be  joined  in  one  indictment  or  information,  they  must,  as  a  rule, 
be  in  separate  counts.  The  rule  is  less  imjierative  as  applied  to  prose^. 
cutions  for  misdemeanors. 

3.  Takiso  female  for  prostitution  and  concubinage  —  Duplicity.— 

Where  an  information  charges  that  defendant  took  away  a  female 
under  eighteen  years  of  age  from  her  father,  without  his  consent,  for 
purposes  of  prostitution  and  concubinage,  there  is  a  joinder  of  two  dis- 
tinct oiTenses  in  oro  count,  and,  hence,  the  information  is  bad  for 
duplicity. 


I     h 


Appeal  from  ^ritcholl  District  Court. 

On  Novcniher  25,  1883,  Richard  Lawson  filed  his  complaint 
under  oath  with  A.  ]*.  Chaffee,  a  justice  of  the  peace  of  Cloud 
county,  cliarrriuf^  that  one  Napoleon  Goodwin,  on  November  24, 
1883,  in  tlic  county  of  Mitchell  and  state  of  Kansas,  did  then 
and  there  unlawfully  and  feloniously  take  away  from  him  his 
daui^hter,  one  Nannie  Lawson,  a  female  under  the  age  of 
eigliteen  years,  for  the  j)ur|K)se  of  prostitution  and  concubinage, 
and  brought  her  into  the  county  of  Cloud  in  said  state.  A 
VouV  — 1 


I    •: 


i'  H 


'mi 


T 


2  AMERICAN  CRIMINAL  REPORTS. 

Avarrant  was  issued  on  said  November  2r,th  by  said  justice  of 
the  peace,  and  said  Goodu'in  was  at  once  arrested.  A  hearing 
was  had  upon  the  comphiint  before  the  justice  of  the  peace,  on 
November  2fi,  1883;  and  thereupon  the  said  Goodwin  was  re- 
quired by  the  justice  to  enter  into  a  recognizance  in  the  sum 
of  $2,000  for  his  appearance  at  the  next  term  of  the  district 
court' of  Cloud  county,  to  answer  the  complaint  filed  against 
him.  In  default  of  bail  defendant  was  committed  to  jail.  On 
April  2i,  1884,  the  follovviiii^  information,  omitting  court,  title 
and  verification,  was  filed  against  said  Goodwin,  under  the 
provisions  of  section  35  of  the  act  relating  to  crimes  and  pun- 
ishments : 

"  I,  J.  W.  Sheafer,  the  undersigned,  county  attorney  of  said 
county,  in  the  name,  by  the  authority,  and  on  behalf  of  the 
state  of  Kansas,  come  now  here,  and  give  the  court  to  under- 
stand and  be  informed  that  on  the  24th  day  of  November,  A. 
D.  1883,  in  the  county  of  Mitchell  and  state  of  Kansas,  one 
Napoleon  Goodwin  did,  then  and  there  being,  and  tiien  and  there 
unlawfully  and  feloniously,  take  away  one  Nannie  Lawson,  a 
female  child  under  the  age  of  eighteen  years,  to  wit,  of  the 
age  of  fifteen  years,  from  her  father,  one  Richard  Lawson, — 
he,  the  said  Richard  Lawson,  then  and  there  having  the  legal 
charge  of  the  person  of  the  said  Nannie  Lawson, —  and  with- 
out the  consent  of  said  Richard  Lawson,  and  with  the  intent 
and  for  the  purpose  of  prostitution  and  concubinage;  and  the 
said  Napoleon  Goodwin  did,  on  the  said  24th  day  of  November, 
1883,  bring  the  said  Nannie  Lawson  into  the  said  county  of 
Cloud  and  state  of  Kansas, —  she,  the  said  Nannie  Lawson, 
being  then  and  there  a  female  under  the  age  of  eighteen  years, — 
and  away  from  the  said  Richard  Lawson,—  he.  Iho  said  Richard 
Lawson,  being  the  father,  and  having  then  and  there  the  legal 
charge  of  the  person  of  her,  the  said  Nannie  Lawson,— and 
without  the  consent  of  the  said  Richard  Lawson,  unlawfully 
and  feloniously,  with  the  intent  and  for  the  purjiose  of  prosti- 
tution and  concubinage,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  [irovided,  and  against  the  peace  and  dig- 
nity of  the  state  of  Kansas. 

"J.  "VV,  SnEAFKR,  County  Attorney." 

On  April  30,  1884,  a  change  of  venue  was  granted,  ui)on  the 
motion  of  the  county  attorney  of  Cloud  county,  and  the  papers 


f 


STATE  v.  GOODWIN. 


8 


and  proceedings  were  ordered  to  be  certified  to  Mitchell  county. 
On  June  23,  1S84,  the  case  came  on  for  hearing  before  the  dis- 
trict court  of  Mitchell  county.  Thereupon  the  defendant 
moved  the  court  to  dismiss  the  action  ])ending  against  him,  on 
the  ground  that  the  district  court  of  ]\Iitchell  county  had  not 
jurisdiction.  The  court  overruled  the  motion,  the  defendant 
excepting.  The  defendant  then  moved  the  court  to  quash  the 
information,  for  the  following  reasons: 

"  (1)  No  information  has  been  presented  by  the  county  at- 
torney as  required  by  law.  (2)  The  information  on  file  ha*s  not 
been  verified  as  ro(juired  by  law.  (3)  The  offense  charged  is 
not  stated  with  such  a  degree  of  certainty  that  the  court  may 
pronounce  judgment  upon  conviction  according  to  the  right  of 
the  case.  (+)  J'>y  reason  of  defects  in  the  information,  substan- 
tial rights  of  the  defendant  would  be  prejudiced." 

The  court  overruled  the  motion,  to  which  ruling  the  defend- 
ant excepted.  Ti;e  defendant  then  moved  the  court  that  the 
prosecution  be  required  to  elect  under  which  charge  in  the  in- 
formation the  state  would  proceed,  whether  for  taking  away 
for  the  purpose  of  i)rostitution,  or  taking  away  for  the  purpose 
of  concubinage.  The  court  overruled  the  same,  to  which  rul- 
ing the  defendant  excepted.  The  defendant  was  thereupon 
arraigned,  and  the  information  read  to  him,  and  he  was  asked 
to  ])lead  thereto;  but,  standing  mute,  the  court  directed  the 
clerk  to  enter  a  i)lca  to  the  information  of  "  not  guilty,"  to  which 
ruling  the  defendant  then  an<l  there  excepted.  Thereupon  a 
jury  was  called,  and  the  trial  proceeded  with.  After  the  in- 
troduction of  all  the  evidence,  the  arguments  of  counsel  and 
charge  of  the  court,  the  jury  returned  a  verdict  finding  the  de- 
fendant guilty  as  charged.  The  defendant  filed  a  motion  for 
a  new  trial,  which  was  overruled,  and  then  filed  a  motion  in 
arrest  of  judgment,  which  was  also  overruled.  The  defendant 
was  sentenced  to  be  confined  at  hard  labor  in  the  state  peni- 
tentiary for  the  term  of  one  year  from  and  including  June  23, 
1 S8+,  and  also  to  pay  all  costs  of  the  action.  The  defendant 
appeals. 

S.  Ji.   Bratlfot'd,  .attorney -general ;  Edwin  A.  Aiisthi^  of 
counsel,  for  the  state. 

L,  J.  Ci'ann,  for  appellant. 


i; 


^  AMERICAN  CRIMINAL  REPORTS. 

IIoRTON,  C.  J.    1.  After  the  district  court  of  Cloud  county 
ordered  the  venue  of  the  information  to  be  corrected,  and 
directed  that  all  the  papers  and  proceedings  be  certified  to  the 
district  court  of  ^[itchell  county,  the  clerk  of  the  district  court 
of  Cloud  county  should  have  made  out  a  full  transcript  of  the 
record  and  proceedings  in  the  cause,  including  the  order  of 
removal  and  the  recognizance  of  appellant  and  of  all  witnesses, 
and  should  have  transmitted  the  same,  duly  certified  under  the 
seal  of  his  court,  to  the  district  clerk  of  Mitchell   county. 
There  is  no  certified  transcript  in  the  record,  and  it  dors  not 
appear  that  such  transcript  was  either  lost  or  destroyed.    After 
the  transcript  of  the  record  and  proceedings  of  the  case  in  the 
district  court  of  Cloud  county  had  been  Hied  with  the  clerk  of 
the  district  court  of  Mitchell  county,  then  the  latter  court 
could  have  proceeded  with  the  case  in  the  same  numner  as  if  it 
had  been  commenced  there.     Although  the  district    court 
transferred  the  case  under  the  provisions  of  section  231  of  tho 
Criminal  Code,  yet  the  transcript  and  jiroceedings  thereafter 
should  have  conformed  as  nearly  as  possible  with  the  provis- 
ions of  sections  188,  18!)  and  190  of  the  Criminal  Code. 

2.  The  information  was  drawn,  we  suppose,  under  section  35 
of  the  act  relating  to  crimes  and  punishments,  which  reads: 

"Every  person  who  shall  take  away  any  female  under  the 
age  of  eighteen  years  from  her  lather,  mother,  guardian,  or 
other  person  having  legal  charge  of  her  person,  without  their 
consent,  either  for  the  purpose  of  prostitution  or  concubinage, 
shall,  upon  conviction  thereof,  be  punished  by  conlinement  and 
hard  labor  for  the  term  of  not  exceeding  live  years.'' 

The  information  charges  that  the  female,  Nannie  Lawson, 
was  taken  away  for  prostitution  and  concubinage.  In  the  in- 
formation there  is  a  joinder  of  two  distinct  felonies  in  one 
count.  If  the  appellant  took  away  the  female  for  tho  purpose 
of  prostitution,  under  the  circumstances  alleged  in  tho  infor- 
mation he  would  be  guilty  of  one  offense ;  but  if  he  took  her- 
away  for  the  purpose  of  concubinage,  but  not  for  prostitution, 
he  would  be  guilty  of  another  offense.  If  the  appellant  took 
the  female  away  for  the  purpose  of  prostitution,  he  did  so  for 
the  purpose  of  devoting  her  to  infamous  purposes ;  that  is,  of 
offering  her  body  to  indiscriminate  intercourse  with  men.  If 
he  took  her  away  for  concubinage  only,  then  his  purpose  was 


« 

i 


I 


STATE  V.  GOODWIN.  f^ 

to  cohabit  with  her  in  sexual  coinnicrce  without  tlie  authority 
of  hiw  or  a  legal  marriage.  Now,  two  or  more  offenses  may, 
under  proper  circumstances,  be  joined  in  one  information,  but 
it  must  be  in  separate  coimts.  Each  count,  as  a  general  thing, 
should  embrace  one  complete  statement  of  a  cause  of  action, 
and  one  count  should  not  include  distinct  offenses,  at  least, 
distinct  felonies.  Tliere  are  many  prominent  exceptions  to  this 
rule,  but  as  this  case  is  not  within  the  exceptions,  they  need 
not  be  noted.  Whart.  Crim.  PI.  &  Pr.,  §§  214-254;  1  Bish. 
Crim.  Proc,  ^§  43;]-44(). 

Again,  if  the  appellant  took  away  the  female  for  the  pur- 
pose of  prostitution,  the  jurisdiction  of  the  case  was  in  Mitchell 
county,  where  the  offense  was  committed,  and  also  in  Clouu 
county,  where  the  female  was  brought,  (■rim.  Code,  sec- 
tion 'i.').  I'ut  if  the  f(;male  was  taken  away  for  the  purpose  of 
concuI)inage  only,  then  the  jurisdiction  of  the  case  was  in 
]\titciiell  county,  where  the  offense  was  committed,  and  not  in 
Cloud  county.  The  information  was  attacked  by  a  motion  to 
(juash.  and  also  by  a  motion  to  compel  an  election.  P>oth  were 
ovei-ruled.  Tiiis  was  errc:%  and  also  error  prejudicial  to  the 
rights  of  the  appellant.  The  evidence  offered  upon  the  trial 
tonded  to  prove  that  the  ap[>i'llant  took  away  the  female  for 
the  pui'pos<i  of  concubinage  only,  yet  the  jury  found  a  ver- 
dict that  the  appellant  was  guilty  as  charged  in  the  infornui- 
tion;  therefore,  we  cannot  toll  from  the  verdict  whether  the 
jury  found  the  ai)i)ellant  guilty  of  taking  away  the  female  for 
the  purpose  of  prostitution,  or  for  tiie  purpose  of  concubinage, 
or  for  both.  AVhart.  Crim.  PI.  it  Pr.,  ^  2.^5;  1  Bish.  Crim. 
Proc,  §  444.  The  rub;  hei'oin  announced  does  not  apply  in 
cases  merc^ly  of  misdemeanors.  S/df/'  /'.  Schweitzer,  27  Kan., 
40!) ;  1  Chit.  Ci'im.  Law,  p.  54.  In  offenses  inferior  to  felony,  the 
])ractice  of  (plashing  the  indictment,  or  calling  upon  the  prose- 
cutor to  elect  u[»on  which  charge  he  shall  proceed,  does  not 
l)revail. 

The  judgment  of  the  district  court  will  be  reversed  and  the 
cause  remanded. 


if 


W'.' 


ii 


Valkntink,  J.,  concurring;  Jouxsrox,  J.,  not  sitting  in  the 


case. 


6 


AMF.IICAN  CRIMINAL  REPORTS. 


m 


Pkople  v.  Kkkfer. 

(65Cal.,233.) 

Accessory  BEFOUE  the  fact  —  Accessory  after  the  fact:  Instrvctionn. 

1.  Aiding  to  conceal  dead  body.—  Wliore  the  testimony  tonda  to  sliow 
that  a  defendant  charged  witli  murder  was  not  persojially  present  at 
the  killing,  and  that  the  killing  was  not  done  in  pursuance  of  any 
agreement  or  undertaking  to  whicli  he  was  a  party,  but  simply  that 
defendant  aided  in  concealing  the  dead  body,  it  would  be  error  to  re- 
fuse to  instruct  the  jury  tliat  if  they  so  iK'lieve  they  should  acquit. 
2.  When  a  person  on  retrial  may  be  convicted  of  murder  of  first 
DEGREE. —  A  defendant  indicted  for  murder  and  found  guilty  of  mur 
der  in  the  second  degrc.<,  who,  on  his  own  motion,  secures  a  new  trial, 
may,  on  a  retrial,  be  convicted  of  murder  in  the  Hrst  degree. 

Appeal  from  a  judgment  of  the  Superior  Tourt  of  l.utto. 
The  defendant  ^vas  convicted  of  murder  in  the  second  de- 
gree.   The  facts  are  stated  in  the  opinion  of  the  court. 

F.  0.  Lusk  and  Reardan  &  Freer,  for  appellant. 
Attorney-General  Mamhall,  for  respondent. 

McKiNSTKY,  J.  Counsel  for  defendant  asked  the  court  to 
charge  the  jury: 

"  If  you  believe  from  the  evidence  that  the  defendant,  James 
Keefer,  was  not  present  when  the  Chinaman,  Lee  Yuen,  was 
killed  by  Chapman,  and  did  not  aid  and  abet  in  the  killing, 
and  that  defendant,  at  the  time  or  prior  to  the  killing,  had  not 
conspired  with  Chapman  to  commit  the  act,  and  that  he  had 
not  advised  and  encouraged  Chapman  therein,  and  that  the 
killing  was  not  done  in  pursuance  of  any  conspiracy  between 
this  defendant  and  Chapman  to  rob  said  Chinaman,  and  that 
this  defendant  only  assisted  in  throwing  the  dead  body  of  the 
Chinaman  into  the  creek,  then  you  are  instructed  that,  under 
the  indictment,  you  must  find  the  defendant  not  guilty." 

It  is  to  be  regretted  that  the  foregoing  instruction  was  not 
given  to  the  jury.  Of  course,  if  defendant  had  done  no  act 
which  made  hnu  responsible  for  the  murder,  the  mere  fact  that 
he  aided  in  concealing  the  dead  body  would  render  him  liable 
only  as  accessory  after  the  fact,- an  offense  of  which  he  could 
not  be  found  guilty  under  an  indictment  for  murder  How- 
ever incredible  the  testimony  of  defendant,  he  was  undoubt- 


any 
I'enal 
trate<j 
])erpe| 
Majol 
causel 
ous  ill 
advi.sj 
surilk 
ator, 
1  Wll 
In[ 
of  til 
could 
Cha[ 
battc 
indej 
coniJ 


PEOPLE  V.  KEEPER.  7 

cdly  entitled  to  an  instruction  based  upon  the  hypothesis  that 
his  testimony  was  entirely  true. 

Assuming  the  testimony  of  defendant  to  be  true,  ♦hero  was 
evidence  ten<ling  to  show  that  no  robbery  was  comniitted  or 
attempted.  In  robbery,  as  in  larceny,  it  must  appear  that  the 
goods  were  taken  anlmo  fuvandl;  and  there  '.vas  evidence 
tending  to  prove  that  his  property  was  not  taken  from  de- 
ceased lucricaimi,  or  with  intent  to  deprive  him  of  it  perma- 
nently. So,  also,  there  was  evidence  tending  to  prove  that 
defendant  was  not  personally  present  at  the  killing,  and  that 
the  killing  was  not  done  in  pursuance  of  any  agreement  or 
underetanding  to  which  defendant  was  a  i)arty,  but  that  it  was 
done  by  ('hajunan  without  the  knowledge,  assent  or  connivance 
of  the  defendant. 

The  tostinu)ny  of  defendant  was  to  the  effect  that  he  did  not 
advise  or  encourage  (^hapiiuin  to  follow  and  tie  the  deceased. 
But  even  if  wc  could  be  supposed  to  be  justilied  in  deciding 
X\\c  fact,  in  holding  that  his  conduct  conclusively  proved,  not- 
withstanding his  testimony  to  the  contrary,  that  he  did  en- 
courage Chapman  in  his  purpose  to  folhnv  and  tie  the  deceased, 
such  encouragement  would  not,  of  itself,  make  him  accessory 
to  the  killing.  An  accessory  before  the  fact  to  a  robbery  (or 
any  other  of  the  felonies  mentioned  in  section  198  of  the 
]*enal  C-ode),  although  not  present  when  the  felony  is  perpe- 
trated or  attemj)ted,  is  guilty  of  a  murder  committed  in  the 
])erpetration  or  att(}mpt  to  perpetrate  the  felony.  People  v. 
Majors,  ()5  Cal.,  IdO.  This  is  by  reason  of  the  statute,  and  be- 
cause the  law  supcM'adds  the  intent  to  kill  to  the  original  feloni- 
ous intent.  People  v.  Dot/ell,  48  Cal.,  94.  One  who  has  only 
advised  or  encouraged  a  misdemeanor,  however,  is  not  neccs- 
snrily  resjwnsible  for  a  murder  committed  by  his  co-conspir- 
ator, not  in  furtherance  but  independent  of  the  common  design. 
1  Whart.  Crim.  Law,  §  220,  and  note. 

In  the  case  at  bar,  if  defendant  simply  encouraged  the  tying 
of  the  deceased, —  a  misdemeanor  which  did  not  and  probably 
could  not  cause  death  or  any  serious  injury, —  as  the  killing  by 
Chapman  was  neither  necessarily  nor  j)robably  involved  in  the 
battery  or  false  imprisonment,  nor  incidental  to  it,  but  was  an 
independent  and  malicious  act  with  which  defendant  had  no 
connection,  the  jury  were  not  authorized  to  iind  defendant 


ll'  .' 


In 


|i: 


8  AMERICAN  CRIMINAL  REPORTS. 

<,'uilty  of  tho  inurdor  or  of  manslaughter.  If  tho  deceased 
luul  been  strangled  by  the  cords  with  which  ho  had  been  care- 
lessly or  recklessly  bound  by  Chapman,  or  had  died  in  conse- 
quence of  exposure  to  the  elements  while  tied,  defendant  might 
have  been  held  liable.  Hut,  if  the  testimony  of  defendant  was 
true,— and,  as  wo  have  said,  he  was  entitled  to  an  instruction 
based  ui)on  the  assumption  that  the  facts  were  as  he  stated 
them  to  be, —  the  killing  of  deceased  was  an  independent  act 
of  Cliapman,  neither  aided,  advised  nor  encouraged  by  liiin, 
and  not  involved  in  nor  incidental  to  any  act  by  liini  aide<l, 
advised  or  encouraged.  The  court  erred  in  refusing  the  in- 
struction. 

Notwithstanding  defendant's  objection,  the  court  ])erniitted 
the  district  attornev  to  ask  a  witness,  the  suri^eon  who  had  ex- 
amined  the  wounds  of  deceased :  "  In  regard  to  that  cut  on 
tho  neck,  if  the  Chinaman  was  struggling  could  such  a  cut 
liave  been  made?"  Conceding  that,  as  claimed,  it  was  error 
to  allow  the  question,  the  error  could  not  have  injured  tlefeiul- 
ant.  As  stated  by  counsel  for  appellant,  the  contention  of  tlu- 
prosecution  was  that  (.'hajnuan  inllicted  tho  fatal  wound  while 
the  deceased  was  jjcrfectly  still,  and  of  the  defense  that  it  was 
while  Chapman  and  the  deceased  were  struggling.  Tho  an- 
swer of  the  witness  to  the  question  Avas:  "  It  is  a  wound  that 
might  have  been  made  in  a  scuflle." 

The  transcript  contains  no  copy  of  the  minutes  of  defend- 
ant's pleas.  IVnal  Code,  U>()r.  It  contains,  however,  a  stij)- 
ulation  signed  by  counsel  which  refers  to  a  plea  of  foi-nier 
acquittal.  The  stipulation  also  recites  that  defentlant  had  been 
tried  upon  the  same  indictment  in  April,  18S3,  anil  convicte<l 
of  murder  of  the  second  degree;  that  on  his  motion  the  ver- 
dict, guilty  of  murder  in  the  second  degree,  was  vacated  and 
a  new  trial  granted,  because  of  error  at  the  trial  in  admittin.' 
certain  evidence.  At  the  second  trial,  counsel  for  defendairt 
requested  tie  court  below  to  charge  the  jury:  "Defendant 
having  been  i)reviously  tried  on  this  indictment,  and  foun<I 
guilty  of  murder  of  the  second  degree,  he  cannot  now  be  con- 
victed of  murder  in  tho  liret  degree." 

It  is  urged  by  appellant  thatUie  refusal  of  the  court  to  o-jve 
the  foregomg  instruction  was  error  which  would  require^he 
reversal  of  the  judgment  and  order  appealer!  from 


legishi 


1 


PEOPLE  V.  KEEFEU. 


At  the  second  trial  dofoiulant  was  found  guilty  o''  ii 
of  the  second  degree.  It  is  obvious,  therefore,  that  llio  .i"o 
lefusal  of  an  instruction  that  ho  couUl  not  be  convicted  of 
murder  of  tiio  iirst  degree  did  not  preju<lice  him.  Inasmuch, 
liou'ever,  as  there  must  be  a  retrial  of  this  action,  it  is  proper 
to  add  that  the  conviction  of  murder  of  the  second  degree 
wcmld  not  have  been  a  bar  to  a  c(mvicti(m  of  murder  of  the 
tlrst  degree.  The  indictment  charges  the  crime  of  nnifdfr, 
and  the  defendant  was  not  acquitted  of  murder  by  the  first 
verdict.  In  dividing  the  crime  of  murder  into  two  <legrees  the 
legislature  recognized  the  fact  that  some  murders,  compr(»- 
hended  within  the  same  general  definition,  are  of  a  less  cruel 
and  aggravated  charact(>r  than  others,  and  deserving  of  less 
l)unisliment.  It  did  not  attempt  to  define  the  crime  of  murder 
anew,  but  only  to  draw  certain  lines  of  distinction  by  refer- 
ence to  which  the  jury  might  determine,  in  a  particular  case, 
whether  the  crime  deserved  the  extreme  penalty  f)f  the  law  or 
a  less  severe  |)unishment.  P<(>j>/('  r.  //a>/»,  44  Cal..  US\  Pn>j)l,' 
V.  Doijell,  4><  Cal.,  04.  After  the  act  of  l.S.-)«{,  which  divid<>(l 
the  crime  into  mui'der  of  the  first  and  second  degnics,  iinii'<f>  r 
remained,  and  it  still  remains,  the  unlawful  killing  of  a  human 
l)eing  with  malice  aforethought.  IVnal  ("ode,  ^jj  1S7,  IS^. 
The  malice  may  be  ex[>ress  or  inijOied;  the  express  intent  to 
kill  or  to  commit  one  of  the  named  felonies  may  bo  affirma- 
tively estal)lished,  or,  the  killing  being  proved,  the  malice  may 
be  implied,  but  in  either  case  the  crime  is  murder.  The  fact 
that  a  severer  penalty  is  to  be  imposed  in  one  case  than  the 
other  does  not  change  the  effect  of  a  previous  conviction,  and 
the  defendant  who,  on  his  own  motion,  secures  a  new  trial, 
subjects  himseir  to  a  retrial  on  the  charge  of  murder,  whether 
the  first  verdict  was  guiltN'  of  murder  of  the  fiist  or  of  the 
second  degree.  At  the  second  trial  he  may,  if  the  evidence 
justify  such  verdict,  be  found  guilty  of  murder  of  the  first 
degree. 

Judgment  and  order  reversed  and  cause  remanded  for  a 
new  trial. 


■;f 


I 

If: 


h 


Ross,  J.,  concurring.  As  there  was  testimony  tending  to 
show  that  defendant  was  not  personally  ]>resent  at  the  killing, 
and  that  the  killing  was  not  done  in  inirsuanco  of  any  agree- 


■-!*■  t- 


r^-- 


In 


Ili 


10  AMERICAN  CRIMINAL  REPORTS. 

ment  or  undertaking  to  which  defendant  was  a  party,  I  agree 
that  the  court  below  erred  in  refusing  to  give  the  instruction 
first  set  out  in  the  opinion  of  Mr.  Justice  McKinstuy,  and  there- 
fore concur  iu  the  judgment.  I  also  agree  with  what  is  said 
in  the  opinion  upon  the  last  \y>hit  discussed. 

McKee,  J.,  concurred  in  the  opinion  of  Mr.  Justice  Ross. 


■  J 


People  v.  Lyon. 
(99  N.  Y.,  210.) 
Accessory:  Felony  —  Misdemeanor. 

1.  CONVERTINQ   MONEY   RECEIVED    FROM   A   CITY   TUEASUKiai.— Under   the 

Laws  of  1875,  cli.  19,  and  3  Rev.  St.,  702,  J?  30,  ono  who  fraudulently 
and  feloniously  receives  money  from  a  city  treasurer,  and  converts 
the  same  to  his  own  use,  commits  a  felony,  and  not  merely  a  misde- 
meanor. 

2.  Accessory  before  the  fact.— In  cases  of  felony,  when  the  crime  was 

committed  through  a  guilty  instrument,  the  instigator  is  v. owed  as  an 
accessory  before  the  fact,  and  as  such  he  must  he  liidict<'d  and  tried. 

8.  No  accessories  in  misdemeanors.— In  misdemeanors  there  are  no  ac- 
cessories.   All  who  aid  or  participate  are  principals. 

4.  Grade  of  offense  determined  by  itnisiiment  prescribed.— The  grade 
of  an  olTensu  is  determined  by  the  nature  of  the  punishment  prescribed 
for  the  act. 

Appeal  from  judgment  of  the  General  Term  Supreme  Court, 
Fifth  Judicial  Department. 

Samuel  Hand,  for  a])pellant,  James  L.  Lyon, 
Edxoard  If.  Hatch,  district  attorney,  for  respondent. 

Rapai.1,0,  J.  The  defendant  was  convicted  in  tlie  court  of 
oyer  and  terminer  of  Erie  county,  under  chai)ter  ID  of  the  Laws 
of  1ST5,  upon  an  indictment  cliargiiig  him  with  having,  on 
the  1-lth  of  September,  iSTo,  fi-audulently  and  feloniously  ob- 
tained and  received  from  Joseph  J]ork,  then  treasurer  of  the 
city  of  Hudalo,  Die  sum  of  !j(2,200  of  the  funds  of  that  city, 
held  by  said  15ork  as  such  treasure)'.  The  second  count  of  the 
indictment  charged  tlie  defendant  with  having  fehuiiously  and 
wrongfully  obtained  said  money  and  converted  it  to  his  own 


PEOPLE  V.  LYON. 


11 


use.  In  both  counts  the  defendant  is  charged  as  a  principal, 
and  tliere  is  no  count  charging  him  as  an  accessory.  The 
money  was  not  received  by  tlie  defendant  personally.  It  was 
deposited  by  JJork,  or  by  his  direction,  with  the  banking  liouse 
of  Lyon  &  Co.,  of  the  city  of  Dulfalo,  of  which  firm  Bork 
and  tlio  defendant  were  members,  and  was  used  by  that  firm 
in  its  business.  Tiie  defendant  had  no  knowledge  of  the  par- 
ticular transaction  upon  wliich  he  was  indicted,  he  being  at  the 
time  in  the  territory  of  Utali,  where  ho  had  been  for  about  a 
montli  before,  and  he  did  not  return  to  Bulfalo  until  about  ten 
days  after  tlio  transaction.  The  prosecution,  to  make  out 
tlieir  case  against  him,  relied  upon  evidence  tliat,  on  prior  oc- 
casions, IJork  liad,  with  the  knowledge  of  the  defendant,  used 
tlio  funds  of  the  city,  in  his  hands  as  treasurer,  in  the  business 
of  tile  firm,  ami  it  was  claimed  that  tliis  evidence  established 
tliut  an  understanding  existed  between  Jjork  and  tlio  defendant 
that  the  city  fimds  should  be  so  used  wlumevor  re(juired.  The 
conviction  rests  upon  this  theory. 

On  tlio  i)art  of  tiio  <lefendant  the  point  is  taken  that  the 
ollV'use  of  wliicli  tlie  defeiulant  was  convicted  is  a  felony;  that 
there  is  no  evi(h'nce  upon  wliicli  his  conviction  as  a  principal 
could  be  sustained,  ho  not  having  been  either  actually  or  con- 
structively present  at  the  commission  of  theoironso;  that  the 
most  that  could  be  claimed  is  tliat  the  evidence*  tended  to  prove 
that  he  was  an  accessory  before  the  fac!^,  and  that,  as  such,  he 
could  not  be  convicted  under  an  indictment  charging  liim  as  a 
pi'incipal.  On  this  ground,  among  others,  the  defendant  moved 
in  the  coui't  of  oyer  and  terminer  for  a  new  trial,  and,  that 
being  denied,  he  appealed  to  the  general  term  of  the  supreme 
court.  I'oth  of  those  tribunals  conceded  that  if  the  otfenso 
was  a  felony  the  conviction  could  not  stand,  and  wo  concur  in 
that  view.  I'rior  to  the  adoi)tion  of  the  Criminal  Code,  where 
a  ci'ime  of  the  grade  of  felony  was  committed  through  the 
agenc}'  of  a  guilty  instrunuMit,  the  instigator  was  regarded  as 
an  accessor}'  before  the  fact,  and  must  be  indicted  and  tried  as 
such.  Peopl,'  0.  Ju-w!n,  +  Denio,  1'29;  Ircuic  v.  Wood,  51  N.  Y., 
'J2+;  Prople  v.  \V/.t'.wn,  5  Parker,  C.  K.,  121 ;  Ilussell  on  Crimes, 
'JT;  Whart.  on  (,^rim.  Law,  §114-;  J/ct'unwi/  v.  I\!oj)h;  83  K 
v.,  40i).  412,  -iV.). 

In  cases  of  misdemeanor,  however,  there  were  no  accessories. 


w 


13  AMERICAN  CRIMINAL  REPORTS, 

AH  who  aided  or  participated  in  the  crime  wore  principals; 
and  the  present  conviction  was  sustained  in  the  court  be  ow  on 
the  ground  that  the  offense  created  by  the  act  of  lS7o,  chapter 
19,  was  a  misdemeanor  only.  ,       -  ^, 

The  act  itself  does  not  define  in  terms  the  ^rado  ot  the 
offense,  but  it  does  prescribe  the  punishment,  which  is  impris- 
onment in  a  state  prison  for  a  term  not  less  than  three  years 
or  more  than  ten  years,  or  a  fine  not  exceeding-  live  times  the 
loss  resulting  from  the  fraudulent  act,  or  by  both  such  line  and 
imprisonment. 

Statutes  creating  new  offenses  do  sometimes  declare  that 
they  shall  be  felonies,  but  the  instances,  altlK)Ugh  numerous 
in  England,  arc  here  rare.    As  a  general  rule,  the  grade  of  the 
offense  is  determined  by  the  nature  of  the  punislnu<Mit  pre- 
scribed.   The  term  "felony,"'  in  the  general  acceptation  of 
the  English  law,  comprised  every  species  of  ci'ime  which  at 
common  law  occasioned  a  total  forfeiture  of  lands  oi-  goods,  or 
both,  and  to  which  uiight  1)0  superadded  cai)ital  or  otlu-r  pun- 
ishment, according  to  the  degree  of  guilt.     4  P.l.  Comm.,  1>1. 
95.    In  England,  the  rule  with  regard  to  felonies  ci-eated  by 
statute  seems  to  be  that  not  only  those  crimes  whicli  are  (U;- 
clared  in  express  words  to  be  felonies,  but  also  those  which  are 
decreed  to  undergo  judgment  of  life  and  memlx.'r  by  any  stat- 
ute, become  feUmies  thereby,  whether  the  word  "felony"  be 
omitted  or  mentioned.    1  Tiussell  on  Crinu's.  41^  (Ith  cd.,  Ts); 
Hawk.  P.  C,  ch.  40,^  1.    Tlie  word  "misdenu'anor  *'  is  ap- 
plied to  all  crimes  less  than  felonies,  comi)rehending  all  iiulict- 
able  offenses  less  than  felonies.    Among  these  are  included,  in 
England,  perjury,  battery,  lib(^l,  conspiracies,  ]niblie  nuisances, 
etc.    1  Eussell  on  Crimes,  4.'>  (4th  ed.,  79).     In  this  state  for- 
feitures of  property  on  conviction  of  crime  have  been  abol- 
ished, and  the  common  law  delinition  of  fehuiy  is  inapplicable; 
but  the  principle  of  determining  the  grade  of  the  offense  by  tho 
character  of  the  punishment  is  recognized  in  the  clearest  manner. 
Many  crimes  which  at  common  law  were  only  misdemeanors 
are  here  felonies,  and  no  instance  can  be  found  in  which  an 
offense  which  is  declared  to  be  a  misdemeanor  can  bo  visitiMl 
with  the  punishment  prescribed  for  a  felony.     Part  IV  of  tho 
Revised  Statutes,  entitled  "  An  act  concerning  crimes  and  ])un- 
ishments,  proceedings  in  criminal  cases  and  prison  discipline;,'' 


PEOPLE  V.  LYON. 


13 


covered,  at  the  time  of  its  enactment,  the  whole  sul>ject 
referred  to  in  its  title.  Chapter  1,  entitled  "  Of  crimes  and 
their  punishment,"  is  divided  into  seven  titles,  in  which  crimes 
are  classilied  as  follows:  The  iirst  title  is  entitled,  "Of  crimes 
])unishal)lc  by  death;"  the  second,  third,  fourth  and  fifth  titles 
relate  to  offenses  "punishable  b\'  imprisonment  in  a  state 
]n'ison;"  tlie  sixth  title  is,  "Of  offenses  punishable  by  impris- 
onment in  a  county  jail  and  by  lines,"  and  under  tiiis  title  are 
enumerated  all  offenses  of  the  grade  of  misdemeanors.  The 
maximum  term  of  imprisonment  for  any  of  the  misdemeanors 
enumerated  in  this  title,  with  but  a  single  exception  in  section 
.'>G,  is  one  year's  imprisonmejit  in  a  county  jail,  while  in  many 
cases  a  much  milder  punishment  is  prescribed,  and  by  section  -10 
(2  llev.  St.,  (!!)T)  it  is  provided  that  "every  person  convicted  of 
any  misdemeanor,  the  punishment  of  which  is  not  prescribed 
in  this  or  some  other  statute,  shall  be  punished  by  imprison- 
ment in  a  county  jail  not  exceeding  one  year,  or  by  fine  not 
exceeding  ^2o(),  or  by  both  such  fine  and  imprisonment." 
Every  one  of  the  oll'enses  enumerated  in  this  sixth  title,  chap- 
ter 1,  part  i,  with  the  solitary  exception  of  petit  larceny,  is 
herein  declared  in  terms  to  be  a  misdemeanor;  but  there  is  not 
a  single  offense  enumerated  in  the  second,  third,  fourth  or  fifth 
titles  relating  to  offenses  jmnishable  by  imprisonment  in  a  state 
prison  which  is  in  terms  declared  to  be  a  felony,  although 
among  these  offenses  there  are  but  few  which  were  felonies  at 
common  law ;  the  greater  i)art  of  them,  such  as  forgery,  per- 
jui'v,  false  pretenses,  and  nuiny  others,  having  been  onl}^  misde- 
meanors at  commim  law. 

Forgery  was  made  a  felony  by  statute  in  the  reign  of  George 
n.,  Jirst  by  a  tem])orarv,  and  afterwards  by  a  permanent,  en- 
actment; but,  unless  there  has  been  some  very  recent  change, 
pei'jury  and  false  i)retenscs  are  still  misdemeanors;  while  jjctit 
larceny,  though  a  felony  at  common  law,  is  only  a  misde- 
meanor in  this  state,  notwithstanding  that  the  degree  of  the 
crime  is  not  expressly  declared  in  the  statute.  It  is  obvious 
that  the  degree  of  the  olfenso,  according  to  the  common  law, 
does  not  all'ord  an}'  guide  for  the  determination  of  that  ques- 
tion in  this  state.  The  seventh  title,  chapter  1,  part  4,  Eevised 
Statutes,  however,  furnishes  the  I'ule  by  which  the  degree  of 
the  offense  can  be  ascertained.    This  title  contains  "general 


r 


il     . 


14 


AMERICAN  CRIMINAL  REPORTS. 


l)rovlsions  concernln;?  crimes  and  their  punishment."  Section 
30  of  this  title  (-2  Eev.  St.,  702)  provides  that  "the  term  'fel- 
ony.' when  used  in  this  act  or  any  other  statute,  shall  be  con- 
strued to  mean  an  offense  for  which  the  offender,  on  conviction, 
shall  be  liable  by  law  to  be  i^unished  by  death,  or  by  impris- 
onment in  a  state  prison.''  Although,  as  has  been  already 
remarked,  the  term  "felony"'  is  not  used  in  any  of  the  i)ro- 
visions  of  the  Revised  Statutes  which  declare  the  offenses  pun- 
ishable by  imprisonment  in  a  state  i)rison,  yet  it  is  used  in 
many  other  jirovisions  relating  to  persons  convicted  of  such 
offenses.  For  instance,  sections  13  and  U,  article  3,  title  4, 
chapter  1,  part  4  (2  Rev.  St.,  083),  provide  that  any  person 
conveying  into  any  place  of  confinement  any  disguise,  or  other 
thing,  with  intent  to  facilitate  the  escapeof  any  prisoner  detained 
for  any  felony  whatever  or  on  a  charge  for  any  felony,  or  by  any 
means  aiding  such  a  prisoner  to  escape,  shall  bo  punished  by 
imprisonment  in  a  state  prison  not  exceeding  ten  years.  Sec- 
tion 15  of  the  same  title  provides  that  similar  assistance  to  a 
])risoner  confined  for  any  criminal  offense,  ofher  tluni  a  felony, 
shall  be  punished  by  imprisonment  in  a  county  jail  not  exceed- 
ing one  year,  or  by  fine,  or  both.  Section  (t,  title  7  (2  Rev.  St., 
COS),  provides  that  every  person  who  shall  bo  an  accessory  to 
any  felony  before  the  fact  shall,  upon  conviction,  be  punished  as 
a  principal  in  the  first  degree.  By  section  1!)  (2  Rev.  St.,  70 1),  a 
sentence  of  imprisonment  in  a  state  prison  for  any  term  loss  than 
life  suspends  all  the  civil  rights  of  the  ])ers(m  so  sei\tenced,  and 
forfeits  all  ])ublic  oiKces  and  private  trusts  or  powers  dui'ing  the 
term  of  such  imprisonment.  By  section  2:5,  before  its  re|)oal, 
no  person  sentenced  upon  a  conviction  for  f<loni/  was  com- 
petent to  testify  in  any  cause  unless  pardoned;  but  no  sentence 
on  a  conviction  for  any  offense  other  than  a  felony  rendered 
the  convict  incompetent.  In  all  these  cases  there  is  no  escaj)e 
from  the  statutory  definition  of  the  term  "  felony." 

The  same  rule  for  determining  what  is  a  felony  is  preserved 
by  the  Penal  Code  which  went  into  effect  T^ecember  1,  1882. 
It  declares  (section  4)  that  a  crime  is  either  a  felony  or  a  mis- 
demeanor; section  5,  that  a  felony  is  a  crime  which  is  or  may 
be  punishable  by  either  death  or  imprisonment  in  a  state 
prison;  section  6,  that  every  other  crime  is  a  misdemeanor. 
If  this  code  established  any  new  rule,  or  increased  the  degree 


i 


*  PEOPLE  V.  LYON.  Jg 

of  guilt,  it  could  not,  of  course,  affect  the  defendant,  as  it  would 
be  an  ex  pont facto  law,  the  offense  with  which  he  was  charged 
having  been  committed  before  its  passage,  and  we  do  not  refer 
to  it  for  any  such  purpose,  but  sim])ly  as  throwing  light  upon 
the  meaning  of  tlie  previously  existing  statutes,  of  which  the 
provisions  last  cited  are  a  mere  condensation. 

The  claim  now  made  on  the  part  of  the  prosecution,  that,  not- 
withstanding the  clear  and  harmonious  provisions  of  the  Revised 
Statutes  which  are  aptly  condensed  in  sections  4,  o  and  G  of  the 
Penal  Code,  the  offense  for  which  the  defendant  was  tried  and 
convicted  —  an  offense  for  which  he  was  liable  to  punishment  by 
imprisonment  in  a  state  prison  for  nou  less  than  three  nor  more 
than  ten  years,  and  for  which  he  was  in  fact  sentenced  to  im- 
prisonment in  a  state  jirison  at  hard  labor  for  a  term  of  four 
years  —  was  a  simple  misdemeanor,  strikes  us  as  so  monstrous 
that  we  sliould  not  have  deemed  it  justifiable  to  go  into  such 
an  extended  discussion  of  the  subject  were  it  not  that  the  con- 
clusions at  whicli  we  have  arrived  come  in  conflict  with  a 
decision  of  this  court,  rendered  in  the  year  1801,  in  the  case  of 
Fa^sKctt  V.  Sinitli,  2'}  N.  Y.,  252,  in  whicii  it  was  held,  in  tlie 
prevailing  opinion  of  James,  J.,  that  the  offense  of  obtaining 
goods,  etc.,  by  false  pretenses,  which  at  conunon  law  was  a 
mere  misdemeanor,  was  not  changed  by  the  Revised  Statutes 
into  a  felony.  Tliat  decision  is  the  main  reliance  of  the  prose- 
cution to  sup])ort  the  judgment  here  appealed  from.  luiswtt  v. 
Smith  was  a  civil  action  to  avoid  a  satisfaction  piece  of  a  mort- 
gage, and  restore  tlie  lien  of  the  mortgage,  on  the  ground  that 
the  satisfacLion  ])iece  l..id  been  obtained  by  fraud.  The  de- 
fendants claimed  to  be  hoiut  jx<le  subsecpient  purchasers  or 
incumbrancers  of  the  mortgaged  premises  for  value,  without 
notice  of  the  fraud.  It  was  conceded  in  the  prevailing  opinion 
that,  if  the  fraud  amounted  to  a  felony,  they  would  not  be 
protected. 

Section  r>;},  article  4,  title  ;{.  chapter  1,  part  4,  provided  that 
"every  person  who,  with  intent  to  cheat  or  defraud  another, 
shall  designedly,  by  color  of  any  false  token  or  writing,  or  by 
any  other  false  pretense,  obtain  the  signature  of  any  person  to 
any  written  instrument,  or  obtain  from  any  person  an\'  money, 
personal  property,  or  valuable  thing,  upon  conviction  thereof 
shall  be  punished  by  imprisonment  in  a  state  prison  not  exceed- 


•k 


16 


AMERICAN  CRIMINAL  REPORTS. 


; 


in 


...g  three  years,  or  in  a  county  jail  not  exceed ing  one  year,  or 
l)3°a  line  not  exceeding  three  times  the  vahie  of  tlie  money, 
property  or  thing  so  obtained,  or  by  both  such  fine  and  im- 
prisonment." Section  5-t  provides  that  if  the  false  token  shall 
be  a  negotiable  instrument,  purporting  to  have  boon  issued  by 
a  bank  not  in  existence,  the  punishment  shall  bo  imprisonment 
in  a  state  prison  not  exceeding  seven  years.  The  article  con- 
taining these  provisions  comes  between  article  2,  which  treats 
of  forgery  and  counterfeiting,  and  article  rl,  which  treats  of 
robbery  and  embezzlement. 

The  head-note  to  the  case  of  Fassctt  v.  Smith  states  the  re- 
sult of  the  decision  to  be,  that  the  definition  of  the  term 
'•felony"  in  the  Kevised  Statutes  has  not  so  changed  the  com- 
mon law  as  to  prevent  a  purchaser  in  good  faith  and  for  value 
obtaining  title  to  goods  which  the  original  vendee  procured  by 
false  pretenses.  If  this  is  the  extent  of  the  decision,  and  its 
only  effect  is  to  protect  a  bona  fi(h  purchasei*  of  goods,  ob- 
tained by  a  felony  of  the  description  referred  to.  the  decision 
has  no  particular  bearing  on  the  present  case,  and  juay  bo  of 
little  practical  importance,  inasmuch  as  the  Penal  Code  (section 
52S)  now  makes  obtaining  good  by  false  ])rotensos  larceny. 
But  t)ie  opinion  in  Fassett  v.  Smith  goes  farther,  and  holds  that 
section  30  does  not  assume  to  define  the  term  "felony,"  except 
when  used  in  a  statute,  and  that  that  term,  not  being  used  in 
the  statute  relating  to  false  pretenses,  the  common-law  char- 
acter of  the  crime  of  ol)taining  goods,  etc.,  i)y  false  pretenses 
was  not  changed. 

This  interi)retation  of  the  statute  is  at  variance  with  all  pre- 
vious decisions  on  the  subject  in  criminal  and  other  prosccu- 
is,  and,  if  applied  to  criminal  cases.  Avould  destroy  the 
i;  c]iy  and  intelligibility  of  the  system  established  by  the 
:.^1V'-C:.)  Statutes,  which  has  already  been  shown.  Even  giv- 
ii;;(  f  tlie  definition  in  section  ?><)  the  restricted  meaning:  at- 
tributed  to  it  by  the  learned  judge,  tliore  could  bo  no  possible 
doubt  of  its  application  to  the  term  "  felony  "  in  the  statutes 
before  referred  to,  relating  to  the  olfenses  of  aiding  a  prisoner 
to  escape,  of  subjecting  an  accessory  before  the  fact  to  the 
same  punishment  as  a  i)rincipal  in  the  first  degree,  suspending 
the  civil  rights  of  one  sentenced  to  state  prison,  of  rendering 
one  convicted  of  the  offense  incompetent  as  a  witness,  etc. 


i 


PEOPLE  V.  LYON. 


17 


Thus,  for  some  purposes,  the  offense  Avould  liave  to  bo  treated 
as  a  felony,  Avliile  for  othei-s  it  would  not.  The  consequences 
of  a  conviction  would  be  those  visited  upon  a  conviction  for  a 
felony,  while  the  indictment  and  trial  would  be  governed  by 
the  rules  applicable  to  misdemeanors;  and  it  might  be  com- 
petent, under  the  provisions  of  section  20,  article  C,  of  the 
constitution,  to  make  the  offender  triable  in  a  court  of  special 
sessions,  without  a  common-law  jury.  See  article  0,  section  26, 
Avhich  is  as  follows:  "Courts  of  special  sessions  shall  have 
such  jurisdiction  of  offenses  of  the  grade  of  misdemeanor  as 
may  be  provided  by  law."  People  v.  Butcher,  S3  N.  Y.,  240; 
People  V.  F!nn,  87  k  Y.,  533. 

Prior  to  the  case  of  Faftsett  v.  Smith,  the  decisions  were,  both 
in  civil  and  criminal  cases,  uniformly  in  accord  with  the  view 
wliich  we  have  taken  as  to  the  effect  of  the  statutory  defini- 
tion of  the  term  "  felony.''  In  Moiorey  v.  Wa/nh,  8  Cow.,  238, 
which  was  decided  in  1828,  before  the  Revised  Statutes  were 
enacted,  it  had  l)eon  held  that  one  who  had  obtained  goods  by 
fraud,  not  amounting  to  felony,  could  convey  a  good  title  to  a 
hiina  Jide  jnirchaser  for  value,  though  it  was  conceded  that  if 
the  g<jo{ls  were  obtained  by  a  felony  no  title  would  pass;  the 
effort  of  the  original  vendor  was  to  estaljlish  that  the  fraud  by 
which  the  goods  were  ol)tained  from  him  wei'c  such  that  the 
j)orson  obtaining  them  was  guilty  of  larceny.  Tiie  fraud  con- 
sisted of  a  forged  recommendation  and  guaranty,  and  amounted 
only  to  a  false  i)retense.  I'ut  the  court,  lavage,  V.  J.,  deliver- 
ing the  opinion,  held  th.'it  as  they  were  obtained  only  by  a 
fraud  which,  at  that  time,  did  not  constitute  felony,  the  hona 
Jf(h'  purchaser  from  the  fraudulent  vendee  actpiired  a  good  title. 
But  in  the  subse(|uent  case  of  Aiu/rfio  v.  JUderi'h,  14  AVend., 
31,  decided  in  1835,  the  same  eminent  judge  delivered  the 
opinion,  hohling  that,  by  the  Jlevised  Statutes,  obtaining  goods 
by  I'iilse  pretenses  was  nuide  a  felony,  and  the  law  was  there- 
fore changed  from  what  it  was  when  Muwr,  >/  v.  ]Val><h  was  de- 
cided ;  and  he  held  that  no  title  passed,  even  to  a  bona  fide 
l»ui'chaser,  from  one  who  had  obtained  the  goods  by  false  pre- 
tenses. He  construed  section  30  as  defining  what  constituted 
a  felony,  and  held  that,  as  by  2  llev.  St.,  7<'t7.  §  53,  every  per- 
son obtaining  goods  by  false  pretenses  was  liable  to  be  pun- 
ished l)y  imprisonment  in  the  state  prison,  he  was  guilty  of  a 
Vol.  V  — a 


18  AMERICAN  CRIMINAL  REPORTS. 

felony,  and  that  the  courts  were  bound  to  say  that  when  the 
legislature  altered  the  law  as  to  what  constituted  a  felonious 
taking,  tliey  intended  that  such  alteration  should  have  its  full 
effect,  and  the  principle  should  be  extended  and  carried  out  in 
all  its  ramifications.    In  Peabody  v.  Fenton,  3  Barb.  Ch.,  451, 
462,  decided  in  1848,  Chancellor  Wahvorth  says :    "  There  can 
be  no  doubt  from  the  evidence  in  this  case,  that  Fenton  ob- 
tained the  mortgage  from  the  complaniant  by  false  pretenses, 
amounting  not  only  to  a  gross  fraud,  but  also  to  a  felony  under 
the  Revised  Statutes."    The  doubt  which  he  is  stated  in  Fas- 
sett  V.  Smith  to  have  expressed  was  not  as  to  whether  the  false 
pretenses  amounted  to  a  felony,  but  as  to  the  correctness  of 
the  holding  in  Andreio  v.  Dieterich,  14  Wend.,  30,  that  the 
operation  of  the  Revised  Statutes  in  making  such  frauds  felo- 
nious, was  such  that  the  power  of  a  fraudulent  vendee  of  goods 
to  transfer  a  valid  title  to  a  bona  fide  purchaser  no  longer  ex- 
isted, and  on  this  point  he  declined  to  express  an  opinion.    In 
Eobinson  v.  Bauchy,  3  Barb.,  20,  29,  the  court  treated  the  ob- 
taining of  goods  by  false  pretenses  as  a  felony.    In  People  v. 
VanSteenhuvgh,  1  Parker,  C.  R.,  39,  it  was  held  that  an  offense 
as  to  which  there  was  a  discretion  in  the  court  to  ]ninish  either 
by  imprisonment  in         state  i)rison,  or  by  fine  or  imprison- 
ment in  a  county  ju.i,  was  within  the  statutory  definition  of 
felony.    Accordingly,  one  who,  without  a  design  to  effect 
death,  killed  a  human  being,  while  engaged  in  the  violation  of 
an  act  punishable  as  above,  was  held  to  have  been  engaged  in 
the  commission  of  a  felony,  and  was  on  that  ground  convicted 
of  murder  and  sentenced  to  be  executed.   This  view  of  the  law 
was  approved  by  the  supreme  court,  to  wliom  tlie  question  was 
submitted  by  the  governor.    In  Shay  v.  People,  22  N".  Y.,  317, 
it  was  held  that  one  who  had  been  convicted  of  2>ciit  larceny 
as  a  fird  offense  was  a  competent  witness,  inasmuch  as  that 
offense  was  not  punishable  by  death  or  imprisonment  in  the 
state  prison,  and  therefore  was  not  convicted  of  a  felony 
within  the  definition  in  2  Rev.  St.,  702,  §  30.    In  I'eople  v. 
Pad',  41  N.  Y.,  21,  it  Avas  held  that  burglary  in  the  third 
degree  was  a  felony  under  the  definition  in  2  Rev.  St.,  702, 
§  30,  being  punishable  by  imprisonment  in  the  state  prison, 
although  the  term  "felony"  is  not  used  in  the  statute  defining 
the  offense.    The  opinion  was  delivered  by  the  same  learned 


^ 


PEOPLE  V.  LYON. 


19 


judge  who  delivered  the  opinion  in  Fassett  v.  Smith,  and  he 
sji ys  that  his  conclusion  is  not  in  conflict  with  Fassett  v.  Smith, 
but  lie  reconciles  the  cases  by  placing  his  opinion  upon  a  new 
ground,  different  from  that  taken  in  23d  New  York,  and,  in 
the  later  case,  says  that  Fassdt  v.  Smith  related  to  obtaining 
goods  by  false  pretenses,  the  punishment  for  which  was  in  the 
alternative, —  state  prison,  county  jail  or  line, —  and  hence  not 
within  the  statutory  definition  of  felony.  This  last  ground  Ave 
are  quite  unable  to  adopt,  inasmuch  as  the  language  of  section 
30  is  that  the  term  "  felony "  shall  be  construed  to  mean  an 
offense  for  which  the  offender  is  liahh  to  be  punished  by  death 
or  by  imprisonment  in  a  state  prison.  It  is  not  confined  to 
cases  in  which  he  mus't  be  so  punished.  The  maximum  pun- 
ishment to  which  he  is  UaJdc  to  be  subjected  is  the  test  by 
which  the  degree  of  the  crime  must  be  determined.  People  v. 
Van,  Sieenhui'cjh,  suprn. 

In  the  case  now  before  ns  there  is  no  alternative  of  punish- 
ment by  imprisonment  in  a  county  jail.  If  there  is  any  im- 
prisonment it  must  be  in  a  state  ])rison,  though  a  fine  may  be 
substituted.  This,  we  apprehend,  however,  is  not  very  impor- 
tant. In  reoj)le  v.  Bragh;  20  Ilun,  378,  affirmed  88  K  Y.,  580, 
the  offense  created  by  the  very  act  now  under  consideration 
(Laws  1875,  ch.  19)  was  treated  as  a  felony,  though  the  point 
was  not  expressly  decided.  The  points  raised  were  of  no 
importance  unless  the  offense  was  a  felony.  But  in  overruling 
them  the  court  did  not  intimate  any  doubt  as  to  the  grade  of 
the  offense,  and  overruled  them  on  other  grounds.  The  case 
of  Famett  v.  Smith,  if  construed  as  holding  only  that  the  stat- 
utory change,  which  converted  the  offense  of  obtaining  goods 
by  false  pretenses  into  a  felony,  did  not  change  the  former 
rules  of  law  in  respect  to  the  rights  of  a  hmui  fide  purchaser 
of  goods  from  a  fraudulent  vendee,  need  not  be  further  dis- 
cussed here.  Chief  Judge  Savage,  in  Andrew  v.  JJieferieh,  1-1 
Wend.,  svjrra,  was  of  opinion  that  the  statutory  change  in  the 
grade  of  the  offense  should  be  cari'ied  out  in  all  its  ramilica- 
tions.  Chancellor  Walworth  doubted  whether  that  was  a  cor- 
rect view  of  the  legislative  intention,  and  of  the  effect  of  the 
statute.  And  even  now,  under  the  Penal  Code,  making  the 
offense  larceny,  the  same  question  is  presented.  We  do  not 
propose  to  consider  it  here.    All  that  is  necessary  to  say  now 


20  AMERICAN  CRIMINAL  REPORTS. 

is  that,  notwithstaiulin.  the  views  expressed  in  the  prevailing 
opinion  in  Fassdt  v.  -th,  we  are  of  oi.inion  that,  under 
Laws  1875,  ch.  1!\  iu-'l  -'  llev.  St,  702,  ^*]0,  the  olTense  for 
which  tlie  defendant  was  indicted  was  a  felony,  and,  for  the 
reasons  stated,  the  conviction  cannot  be  sustained. 

The  conceded  facts  being  such  that  under  the  present  indict- 
ment no  conviction  could  be  had,  it  seems  useless  to  direct  a 
new  trial.  Judgment  of  supreme  court  and  court  of  oyer  and 
terminer  reversed. 

(All  concur.) 

N0TE.-£x  parte  Wilson,  114  U.  S.,  417;  S.  C,  4  Am.  Cr.  R.,  283,  and 
note. 


MiNicu  V.  People. 
(8  Colo.,  440.) 

Accessory  before  the  fact:  Murder— rim  — Reading  indictment— 
Witncssen  not  indorsed  on  indictment  — Lixt  of  jurors-  Clinllcncjcs  — 
Instructions  —  Repetition  —  RcasonaUe  doubt  —  Reasonable  hypothe- 
sis consistent  with  innocence. 

1.  Plea  upon  arraignment— By  whom  to  be  made  — Readino  indict- 
ment.— Under  thestatutes  of  Colorado  (Gen.  St.,  S5  9'>4)  it  is  inuiiateriul 
whether  the  prisoner's  plea,  upon  arraignment,  he  made  by  tiio  piis- 
oner  himself  or  his  counsel,  and  it  is  not  essential  th.it  upon  arraign- 
ment the  indictment  be  read  to  him  at  length  where  a  true  copy  of 
such  indictment  has  been  given  him. 

3.  Notifying  the  defendant  as  to  witnesses  against  iiim.— The  jiroso- 
cution  is  not  confined  to  those  witnesses  indorsed  u[)on  the  bafk  of  the 
indictment  on  the  trial  of  the  case,  but  may  introiluce  others  by  the 
indulgence  of  the  court  exercising  its  wise  discretion. 

3.  At  what  time  list  of  petit  jurors  should  be  furnished  defend- 

ant.-Provided  defendant,  before  his  trial,  w.is  furnished  with  a  list 
of  the  petit  jury,  his  conviction  cannot  be  invalidated  by  the  fact  that 
such  list  was  not  furnished  before  his  arraignment,  unless  he  cati  show 
that  he  has  been  injured  thereby. 

4.  Juror  —  Challenge  —  Denial  —  Error  without  prejudice.— The 

denial  of  a  challenge  for  cause  of  a  juror,  wlio  stated,  in  order  to 
escape  serving,  that  he  could  not  overcome  his  belief  iii  the  prisoner's 
guilt,  which  juror  was  subsequently  peremptorily  challengetl,  is,  when 
it  appears  that  the  prisoner,  uiwn  going  to  trial,  had  exhausted  but 
eight  of  his  fifteen  peremptory  challenges,  an  error  without  prejudice, 
and  cannot  be  fatal  to  the  judgment. 


10. 


i 


., 


t) 


1. 


MINICH  V.  PEOPLE. 


91 


5,  CnATXEXQE  — Remote  interest  as  to  accessory.— It  is  proper  to  sus- 
tain a  challenge  to  a  juror  who  has  stated  in  his  evidence  an  opinion 
as  to  guilt  or  innocence  of  the  prisoner  obtained  directly  from  wit- 
nesses, and  who  has  business  relations  with  a  party  indicted  jointly 
with  defendant  for  the  crime. 

0.  Oath  — Essentials, — Since  there  is  in  Colorado  no  statutory  form  of 
juror's  oath,  the  common  law  form  is  used ;  but  any  form  is  proper 
that  recpiires  the  juror  to  bind  himself  as  to  his  essential  duties. 

7.  Accessory  before  the  fact. —  An  accessory  before  the  fact  is  equally 

giiilty  with  the  principal  in  a  case  of  murder. 

8.  Instuvction  to  jcry  — Falsus  in  UNO,  falsus  in  omnibus.— In  case 

the  court  instructs  the  jury  peremi)torily  to  reject  the  entire  testimony 
of  a  witness  who  has  testified  falsely  as  to  one  fact,  it  should  add  that 
any  of  such  testimony  iis  is  suj)i)orted  by  corroborative  testimony  is 
excei)ted  from  such  instruction ;  but  when  the  instruction  suggests  that 
the  jury  iiuty  reject  such  testimony,  the  court  need  not  mention  such 
exception. 

9.  Testimony  of  defendant.— As  to  the  testimony  of  the  defendant  in  a 

trial  for  nun-der,  it  is  not  error  for  the  court  in  its  instructions  to  re- 
mind the  jury  of  the  defendant's  interest  in  the  result  of  the  tri.al. 
provideil  it  refrains  from  intimating  or  suggesting  the  degree  of  weight 
to  be  given  to  such  interest. 

10.  Reasonable  doubt — Definition.— In  instructing  the  jury  as  to  the 

reasonable  doubt  of  the  prisoner's  guilt  that  should  prevent  his  con- 
viction, it  is  not  error  for  the  court  to  explain  that  "it  is  such  a  doubt 
as  would  cause  a  reasonable  man  to  hesitate  and  jiause." 

11.  KEASdNABLE    THEORY    UI'ON   WHICH    TO    OTHERWISE  ACCOUNT  FOR  THE 

CHlMi:. —  In  a  ca.se  when  ccmviction  is  to  rest  upon  evidence  merely 
circumstantial,  it  is  not  error  for  the  ctmrt  to  instruct  the  jury  that  if 
there  is  any  other  rcdsoiiahle  theory  or  hypothesis  upon  which  the  kill- 
ing niiiy  1k'  accounted  for,  they  are  to  ac(iuit. 

12.  Repetition  of  instruction  substantially  given. —  The  court,  hav- 

ing already  substantially  given  the  instruction  asked,  need  not  repeiit 
its  sul)stance  because  dilTerently  expressed. 

Error  to  the  District  Court  of  Lake  County. 


J/.  Z.  Jif'tv,  2*/itlip  0.  Fart'ell  iind  Ta>jlor  c&  As/ifoii,  for 
plaintiff  in  error. 

T.  jr.  T/ioiiuts,  attorney -general,  for  defendant  in  error. 

ITklm,  J.  Indictment  for  murder.  Cause  tried  in  January 
last,  riaintiff  in  error  convicted  of  murder  in  the  first  degree, 
and  sentenced  to  death.  IJy  means  of  a  siij)e/\^e(/ra6  from  this 
court  execution  stayed  until  such  time  as  the  trial  coidd  be  re- 
viewed upon  the  record  before  us.  Thirtv-four  errors  are 
assigned,  fifteen  of  which  arc  argued  at  length  by  counsel. 


'  [ 


•f 


22 


AMERICAN  CRIMINAL  REPORTS. 


"VVe  will  now  in-oceed  to  consider  those  suflUcicntly  important 
or  material  to  require  notice. 

1.  It  is  urged  that  accused  was  not  arraigned  and  given  an 
opportunity  to  pU'ud  before  trial.  If  this  assignment  of  error 
is  correct,  the  judgment  must,  of  course,  be  reversed ;  because 
the  arraignment  and  plea  constitute  the  issue  to  bo  tried,  and 
consequently,  if  there  was  no  arraignment  and  plea,  there  is 
nothing  upon  which  a  trial  could  be  had.  The  record  proi)er 
contains  the  following  entry : 

■'Now,  on  this  day,  comes  William  Kellogg,  who  prosecutes 
the  plea  of  the  people  in  this  behalf,  and  comes  defendant 
herein,  Si  Minich,  in  his  own  proper  person,  and  by  ]\r.  L.  Kice, 
Esq.,  his  attorney,  and  thereupon  said  defendant,  being  bnjuglit 
before  the  bar  of  the  court  and  arraigned,  and  the  indictment 
herein  being  read  to  hnn,  and  he  being  furnisiied  witii  a  copy 
of  the  same,  and  a  list  of  the  jurors  and  witnesses,  and  re- 
quired to  plead  to  said  indictment,  wJiereupon  he  answers  and 
says  he  is  not  guilty  in  the  manner  and  form  as  charged  in  sai<l 
indictment,  and  of  this  he  puts  himself  upon  the  country  for 
trial,  as  does  the  district  attorney." 

Tiie  facts  attending  this  proceeding,  as  di.sclosed  by  aflidavits, 
in  support  of  a  motion  to  correct  the  record,  are  as  follows: 
Plaintiff  in  error,  being  brought  into  court,  accompanied  by 
his  attorney,  and  having  received  a  copy  of  the  indictment, 
after  some  little  time,  the  exact  length  of  which  we  are  not 
advised,  was  called  upon  by  the  district  attorney  to  ])lead. 
Thereupon  he  arose  in  i)resence  of  the  court,  and  tlio  district 
attorney  began  to  read  the  indictment.  When  he  had  read  a 
few  words  Ur.  Rice,  counsel  for  the  accused,  interrupted  with 
the  statement,  .substantially:  "You  need  not  road  tlie  indict- 
ment; we  have  read  it,  and  know  its  contents.  Tiie  record 
may  show  a  formal  arraignment  and  plea  of  not  guilty." 
Whereupon  the  district  attorney  desisted  from  furthei-  reading 
of  the  indictment,  and  demanded  of  the"  accused  whether  he 
was  guilty  or  not  guilty,  to  which  incjuiry  either  he  or  his 
counsel  responded  "  not  guilty,"  and  the  court  directed  such 
response  to  be  entered  of  record.  We  think  the  weight  of 
proofs  in  the  affidavits  sustains  the  conclusion  that  it  was  the 
accused  himself  who  entered  the  plea.  Some  of  the  ancient 
formalities  connected  with  the  arraignment  of  persons  accused 


1 


MINICII  V.  PEOPLE. 


23 


of  crime  have  long  been  discarded.  And  now  there  seem  to 
be  in  ))ractico  three  acts  attending  the  proceeding,  viz.,  calling 
the  defendant  to  the  bar  of  the  court  to  answer  the  matter 
charged  against  him;  reading  the  indictment  to  him;  and  de- 
manding of  him  whether  he  is  guilty  or  not  guilty.  I>y  statute 
in  this  state  (section  IK54  of  the  General  Statutes;  it  is  expressly 
enacted  that  the  declaration  of  his  plea  may  be  mil  do  oi'aily, 
by  himself  or  by  counsel.  Also,  that  the  mention  of  the 
arraignment  and  such  )>lea  in  the  records  of  the  court  shall 
constitute  the  issue  between  the  people  of  the  state  and  the 
prisoner. 

It  will  be  observed  from  the  foregoing  that  the  question 
whether  the  response  of  "  not  guilty  "  was  given  by  the  accused 
or  iiis  attorney  is  of  no  inijiortance.  And  upon  examination  of 
the  facts  above  stated  it  will  be  seen  that  the  arraignment  in 
this  case  compli  m)  fully  with  the  requirements  UKMilioned  ex- 
cept in  one  particular,  /.  c,  the  reading  of  the  indictment.  Is 
this  a  fatal  defects  It  is  almost  superfluous  for  us  to  say  that 
the  object  to  be  attained  by  this  step  in  the  ])rooee<ling  is  to 
inform  the  prisoner  <»f  the  exact  character  of  the  crime  with 
wliich  he  stands  chai-ged,  and  for  which  he  is  to  be  tried.  At 
comnum  law  the  nuilcrial  importance  of  this  proceeding  is  un- 
(juestioned,  for  it  was  the  only  means  through  which  the 
accused  was  given  by  the  state  a  complete  des('ri))tion  of  the 
offense  charged.  Secticm  {>5:J  of  the  General  Statutes  now, 
liowever,  ex])ressly  provides  that  before  arraignment  the  pris- 
oner shall  1)0  furnished  with  a  copy  of  the  indictment.  There 
can  be  but  one  object  in  the  enactment  of  this  provision,  and 
that  is  to  accomplish  the  very  purpose  for  which  the  reading 
of  the  indictment  originally  took  place.  It  needs  no  argument 
to  show  that  in  this  respect  the  latter  method  is  better  than 
the  formei';  that  with  a  copy  of  the  indictment  in  his  posses- 
sion, to  be  read  and  re-read  bv  himself  and  bv  his  counsel,  he 
is  more  thoroughly  advised  of  the  cri'ne  charged  than  he  could 
possibly  be  in  listening  to  the  oral  reading  thereof  by  the  dis- 
trict attorney.  The  latter  officer  might  by  mistake  or  through 
design  omit  to  read  or  misread  material  matters  therein  con- 
tained, but  when  the  accused  has  fin  exact  copy  for  his  own 
inspection,  and  that  of  his  attorney,  no  such  mistake  or  im- 
position is  possible.    Thus  we  see  that  not  only  is  the  statu- 


/   r 


;li 


M 


AMERICAN  CRIMINAL  REPORTS. 


tory  provision  framed  for  the  purpose  of  accomplishing  the 
very  object  designed  in  the  reading,  but  that  it  is  a  decided 
improvement  as  far  as  the  accused  is  concerned  in  this  regard. 
In  Illinois,  under  statutes  similar  to  ours,  it  is  declared  that 
"  the  statutory  requirement  of  furnishing  the  prisoner  with  a 
copy  of  the  indictment  is  a  better  means  of  Information  to 
him"  of  the  charge  than  the  reading  -jt  the  indictment  to  him." 
Fitzpatrick  v.  People,  OS  III,  25i).  And  It  is  substantially  held 
that  the  reading  of  the  indictment  is  not  essential. 

In  the  case  of  Good'm  v.  State,  IG  Ohio  St.,  3i4,  the  accused 
had  been  furnished  with  a  copy  of  tiie  indictment  at  a  period 
prior  to  his  arraignment.  Upon  his  arraignment  the  Indict- 
ment was  not  read  to  him,  but  he  entered  his  plea  of  not  guilty 
without  objection,  and  the  court  say:  "It  would  have  bccn, 
then,  an  idle  ceremony  to  read  him  a  paper  with  tlie  contents 
of  which  lie  was  already  familiar."  Tlie  prisoner  stood  in 
court  better  informed  of  tlie  character  and  nature  of  the 
charges  preferred  in  the  indictment  tlian  he  couUl  liave  been 
by  any  hasty  reading  thereof  in  court  under  the  embarrass- 
ments incident  to  that  situation.  See  1  J>i»li.  Crini.  I'roc.  (;Jd 
ed.),  §  733.  There  are  cases  whlcli  liold  that  even  in  indict- 
ments for  a  felony,  if  the  accused,  anterior  to  trial,  plead  not 
guilty,  and  the  plea  is  accepted  and  recorded,  the  entire  omis- 
sion of  an  arraignment  is  cured  on  the  ground  of  waiver. 
But  we  do  not,  in  tills  connection,  i)ass  u])on  the  (piestion  of 
waiver,  except  as  to  the  reading  of  the  indictment.  We  hold 
that  since  the  reason  for  this  proceeding  Is  fully  satisfied,  the 
irregularity.  If  such  it  can  be  termed,  is  not  fatal  to  the  Judg- 
ment. 

Counsel  complain  that  the  accused  in  this  case  could  not 
have  been  sufRciently  informed  of  the  contents  of  tlie  indict- 
ment at  the  time  he  pleaded  thereto,  because,  as  they  sav  in 
argument,  a  copy  thereof  had  only  been  deliveied  about  live 
minutes  previous.  This  suggestion  comes  too  late.  Had  the 
announcement  been  made  when  he  was  called  ujion  to  plead 
to  the  indictment,  the  arraignment  would  have  been  postponed; 
and  from  the  fact  that  he  stood  by  and  made  no  ol)jection  or 
protest  when  his  counsel  declared:  ""We  have  read  tiie  indict- 
ment and  know  its  contents,"  we  must  presume  that  the  state- 
ment was  true. 


I 


1 


MINICH  V.  PEOPLE. 


25 


2.  It  is  assigned  as  error  that  a  list  of  all  the  witnesses  who 
testilieil  in  chief  upon  tlie  trial  was  not  furnished  to  the  ac- 
cused previous  to  his  arraignment,  as  I'equired  by  section  953 
aforesaid,  which  reads: 

"  Every  person  chai'ged  with  murder  or  other  felonious  crime 
sliall  be  furnished,  previous  to  arraignment,  with  a  copy  of 
the  indictment  and  a  list  of  the  jurors  and  witnesses.     .    .     ," 

It  appears  that  the  names  of  all  witnesses  who  testified  be- 
f(}re  the  grand  jury  wore  indorsed  upon  the  indictment,  a  copy 
of  whicii  instrument  witii  such  indorsement  was  delivered  to 
the  accused.  It  also  appears  that  before  going  to  trial  a  list 
of  all  otlier  witnesses  used  in  chief  by  the  state  was  given  him; 
and  it  furtlier  appears  that  no  objection  was  interposed  to  wit- 
nesses testifying  on  the  ground  that  their  names  were  not  fur- 
nislied  the  accused  jn'ior  to  arrair/nnwnf.  I  Jider  our  practice, 
the  foreuuin  always  indorses  upon  the  indictment  the  names 
of  all  witnesses  examined  by  the  grand  jury.  In  Illinois, 
where  the  practice  is  similar,  but  statutory,  it  is  hol<l  that  the 
list  of  witnesses  commanded  bvthe  statute  to  be  furnislied  the 
prisoner  prior  to  his  arraignment  is  to  eml)race  tlioso  whicli 
Avore  to  be  indorsed  upon  the  indictment.  And  it  is  further 
held  that  the  jjrosecution  is  not  conlined  to  the  list  of  wit- 
nesses thus  furnished  prior  to  arraignment ;  "  tliut  the  circuit 
court  in  the  exercise  of  a  sound  discretion,  and  having  a  strict 
and  impartial  regard  for  the  rights  of  the  community  and  the 
prisoner,  may  permit  such  other  witnesses  to  be  examined  as 
tlie  justice  of  tlie  case  may  seem  to  rcnpiiro."'  Gaiuhicr  v. 
People.  3  Scam.,  8:5;  Gutes  v.  People.,  14  111.,  \'-\\\\  Loijy  v.  Peo- 
ple, 92  III.,  598,  and  cases  cited.  Accepting  the  view  taken  in 
these  cases,  and  ai)plying  it  to  the  case  at  \y,\\\  we  must  over- 
rule this  objection.  Plaintiff  in  error  was,  as  already  stated, 
prior  to  .ho  trial,  furnished  with  the  n.amcs  of  all  witnesses 
called  in  chief,  and  there  is  nothing  in  the  record  which  shows 
that  he  was  in  any  way  surprised  or  his  rights  [)rejudiced  by 
reason  of  the  fact  that  he  was  not  sooner  api)rised  that  they 
would  be  sworn.     See  Wlhon  v.  People,  3  t^)Io.,  ;525. 

3.  A  third  objection  to  the  judgment  below  is  that  the  ac- 
cused was  not  furnished  with  a  list  of  the  petit  jurors  ^)/vV>;'  to 
/lis  an'((!(/ni/u'nt.  Although  the  record  recites  that  this  pro- 
vision of  section  953  aforesaid  was  complied  Avith,  yet  the 


s. 


i 


I 


r 


AMERICAN  CRIMINAL  REPORTS. 


facts  appear  to  be  as  follows:  That  at  the  time  of  arraign- 
ment the  entire  panel  of  jurors  had  been  excused  for  the  term, 
and  no  special  venire  had  been  returned.  It  was  therefore  im- 
possible to  then  arraign  the  defendant  and  also  furnish  the  list 
of  jurors.  It  further  ai)pears  that  before  trial  a  list  of  the 
jurors  summoned  was  delivered  to  defendant  and  consulted  by 
his  counsel  in  selecting  the  jury;  also,  that  no  ol)jection  what- 
ever was  interposed  upon  this  ground  either  to  the  arraignment 
or  to  impaneling  the  jury  and  going  to  trial.  AVith  reference 
to  the  statutory  requirement  aforesaid  concerning  jurors,  this 
court  has  held  that  it  relates  to  an  important  right.  "  It  gives 
the  prisoner  and  his  counsel  an  opportunity  to  inquire  concern- 
ing and  consider  upon  the  character,  dispositions  and  relations 
of  those  composing  the  regular  panel,  and  to  select  such  as 
they  think  will  give  the  prisoner  a  fair  and  impartial  trial." 
Stratton  v.  Peojde,  5  Colo.,  '270;  3[ooney  v.  l\>oph\  7  Colo.,  218; 
S.  C,  3  Pac.  Rep.,  235.  IJut  in  both  of  these  cases  the  ques- 
tion discussed  and  decided  had  reference  solely  to  the  improper 
depletion  of  the  regular  panel  by  the  sustaining  of  challenges 
for  cause  upon  insufficient  grounds,  and  the  proposition  no»v 
urged  was  not  presented. 

It  would  seeni  that  since  in  this  case  the  list  of  jurors  wa^i 
furnished  ])rior  to  trial,  and  the  defendant  was  thus  given  aa 
opportunity  to  secure  the  requisite  information  concerning 
them,  the  reason  of  the  law  was  complied  with.  If  it  appeared 
that  the  defendant  was  injured  or  put  to  a  disadvantage  by  the 
failure  to  furnish  this  list  jn-ior  to  arraignment,  ])articularly  if 
he  entered  a  timely  protest,  his  conviction  ought  not  to  stand. 
But  there  is  nothing  in  the  record  before  us  from  winch  the 
slightest  prejudice  to  his  rights  on  this  account  can  be  inferred. 
Commenting  upon  this  subject  the  supreme  court  of  Illinois 
say,  that  while  it  is  the  duty  of  courts  to  pi-isoners,  "among 
other  things,  to  notify  them  in  duo  time  as  to  what  men  con- 
stitute the  paiiel  out  of  which  the  jurors  for  their  trial  should 
be  called,  ...  it  is  not,  however,  every  little  inaccuracy 
which  may  occur  in  this  regard  for  which  a  trial  should  bo  set 
aside."  aoo<lhue  v.Stnto.U  III.,  37.  And  they  hold,  under 
just  such  a  statute  as  ours,  that  unless  the  accMS(>d  has  been 
"put  to  a  disadvantage"  from  the  irregularity,  his  conviction 
ought  not  to  bo  interfered  with. 


i 


MINICH     V.  PEOPLE. 


27 


In  Ohio,  a  statute  requiring  that  a  list  of  jurors  be  furnished 
in  capital  cases  "  at  least  twelve  hours  before  the  trial "  is  con- 
strued to  be  simply  directory  as  to  a  duty  to  be  ])erforraed  by 
the  state.  It  is  said  that  "  if  a  defendant  in  a  criminal  prose- 
cution wishes  to  avail  himself  of  such  omission  of  duty  on  the 
part  of  the  state,  he  must  do  it  on  motion  before  trial  or  inter- 
pose it  as  an  objection  to  being  put  on  his  trial."  The  doctrine 
that  a  waiver  of  this  right  may  take  place  is  fully  recognized. 
Fonts  V.  /State,  8  Ohio  St.,  98.  On  the  subject  of  waiver  as  to 
this  matter,  see  Pressleij  v.  State,  19  Ga.,  192;  State  v.  JiusseU, 
33  La  Ann..  135.  Mr.  Bishop  supports  with  a  strong  array  of 
authorities  the  proposition  that  "  if,  while  the  petit  jury  is  being 
impaneled,  the  prisoner  knows  of  a  cause  of  challenge  against 
one  of  tliem,  or  the  whole,  but  declines  to  interfere  then,  he 
cannot  afterwards  l>ring  forward  the  objection."  1  Bish.  Crim. 
Law,  §  9i)7,  and  cases  cited.  Yet  tlie  reason  for  recognizing 
the  doctrine  of  waiver,  in  connection  Avith  such  questions,  is 
not  so  strong  as  it  is  in  tlie  matter  now  beft^re  us.  Tlie  objec- 
tion under  consideration  does  not,  in  our  judgment,  justify 
reversal. 

4.  During  the  selection  of  the  jury,  Flucken,  one  of  the 
jurors  called,  was  challenged  by  the  defendant  for  cause.  The 
examination  upon  his  voir  dhv  discloses  such  a  state  of  mind 
on  liis  ])art  as  would  have  justified  the  court  in  sustaining  the 
cliallengo.  He  had  formed  a  decided  opinion  upon  the  merits, 
and  in  his  tcstimt)ny  several  times  declared  that  he  would  be 
iiilluenced  by  the  opinion  and  could  not  fairly  and  impartially 
try  the  case.  Tliero  is  little  doubt  but  that  this  juror,  like 
many  other  business  men,  was  anxious  to  avoid  the  perform- 
ance of  his  duty  in  tlie  premises,  and  there  is  strong  justification 
in  his  answer  to  the  questions  propounded  for  the  indignation 
aroused  in  the  mind  of  the  ju<lge.  But  considering  his  testi- 
mony alone,  as  wo  iind  it  in  the  record,  it  falls  short  of  indicat- 
ing that  he  would  have  acted  as  an  im[)artial  juror.  This  court 
lias  held  that  section  1893  of  the  (leneral  Statutes  transforms 
the  character  of  the  objection  mentioned  from  a  ground  of 
principal  challenge,  as  at  common  law,  to  a  ground  of  challenge 
to  the  favor,  and  that,  by  virtue  of  the  statute,  the  finding  by 
the  court  of  the  /'aft  of  th>'  Juror^s  itufl^tn'tuv  is  not  review- 
able.   Solandcr  v.  People,  2  Colo.,  48;  Jones  v.  Pco2)le,  id.,  351. 


f  '] 


AMERICAN  CRIMINAL  REPORTS. 


It  is  unnecessary  for  us  now  to  determine  whetlier  or  not  tlic 
position  taken  in  these  cases  is  affected  by  subsequent  decisions, 
or  by  other  legislation;  for,  admitting  that  the  finding  upon 
this  question  is  reviewable,  and  that  the  court  in  this  case  erred 
in  denying  defendant's  challenge,  we  are  still  of  opinion  that 
the  error  under  the  circumstances  disclosed  does  not  authorize 
a  reversal.  It  appears  that  Flucken  was  challenged  by  the  ac- 
cused peremptorily,  and  consequently  his  previous  opinion 
could  in  no  way  have  influenced  the  verdict.  It  also  ai)pears 
that  when  the  accused  accepted  the  jury  and  went  to  trial  he 
had  exhausted  but  eight  of  his  fifteen  peremptory  cliallonges. 
In  view  of  these  facts  Ave  are  constrained  to  hold  that  the  error 
in  denying  the  challenge  for  cause,  if  such  it  was,  could  not 
have  injured  accused,  and  therefore,  being  error  without  prej- 
udice, it  cannot  be  fatal  to  the  judgment.  ITpon  this  subject 
the  cases  are  not  all  in  accord,  but  the  decided  weigiit  of  author- 
ity is  in  favor  of  the  view  adopted.  AVe  have  not  given,  and 
shall  not  attempt  to  give,  the  reasons  at  length  upon  which  our 
conclusion  is  based.  We  accept  the  conclusicm  and  content 
ourselves  by  referring  counsel  for  the  reasoning  to  some  of  the 
authorities  in  which  the  doctrine  is  maintained.  J'rolT.  Jur. 
Trial?,  §  105;  Ermn  o.  State,  29  Ohio  St.,  1S6;  State  v.  Elliott, 
45  Iowa,  480;  State  v.  Zaidor,  28  Minn.,  210;  .S'.  T.,  0  X.  W. 
Eep.,  698;  State  v.  Davis,  41  Iowa,  311;  Lum  ?•.  State,  11  Tex. 
App.,  483;  McGowan  v.  State,  9  Yerg.,  184;  Sfeuuirt  v.  State, 
13  Ark.,  720;  Benton  v.  State,  30  Ark.,  328;  Mini  ins  v.  State, 
16  Ohio  St.,  221;  Wilson  v.  People,  94  111,  299. 

5.  There  was  no  error  in  allowing  the  challenge  to  the  juror 
Priddy.  His  voir  dire  examination  showed  that  he  had  formed 
and  expressed  a  positive  opinion  concerning  defendant's  guilt 
or  innocence;  that  such  opinion  Avas  obtained  largely  from 
statements  made  to  him  by  witnesses;  tliat  he  had  business 
relations  with  Gillespie,  who  was  jointly  indicted  and  a  co- 
defendant  with  Minich,  but  who  was  not  on  trial  owing  to  a 
severance  allowed  by  the  court;  and  that  he  sujjposcd  himselt 
to  entertain  a  feeling  of  "■  bias  at  the  outset.''  Upon  these 
facts  we  think  the  challenge  by  the  district  attorney  was  wisely 
sustained. 

6.  Another  objection  presented  is  that  the  jury  were  not 
legally  sworn  to  try  the  cause.    The  record  entry,  which  con- 


i 

I 
I 

•I 


^1 


'; 


MINICH  V.  PEOPLE,  g§ 

tains  all  tlie  information  before  us  on  the  subject,  after  naming 
the  jurors,  reads  as  follows: 

"Twelve  good  and  lawful  men  of  the  county  of  Lake,  who 
were  duly  impaneled,  tried,  and  sworn  to  well  and  truly  try 
the  issue  joined,  and  a  true  deliverance  make  between  the  peo- 
})le  of  the  state  of  Colorado  and  Si  Minich,  the  prisoner  at  the 
bar,  and  a  true  verdict  render  according  to  the  law  and  the 
evidence." 

There  is  with  us  no  statutory  form  for  this  oath,  and  it  should 
be  substantially  as  required  at  common  law.  The  defects 
pointed  out  by  counsel  are  the  omission  of  the  clause,  "  whom 
you  shall  have  in  charge,"  and  the  concluding  phrase  or  invo- 
cation, "so  help  j'ou  God."  Had  the  record  simply  contained 
the  declaration  that  the  jury  were  "  duly  sworn,"  or  that  they 
were  "sworn  according  to  law,"  it  would  have  been  sufficient; 
l)ut  while  conceding  this,  a  number  of  the  decisions  hold  that 
Avhere  an  attempt  is  made  to  set  out  the  oath  administered,  it 
must  aHirnuitively  appear  that  no  nuiterial  ytuvt  was  omitted. 
It  will  be  noticed  that  the  record  before  us  does  not  purport  to 
give  tlie  exact  oath  administered  to  the  jury.  It  is  in  narra- 
tive form;  it  recites  the  fact  that  thejMvere  duly  sworn,  and 
then  ])roceeds  to  indicate  generally  what  they  were  sworn  to 
do.  The  declaration  that  they  were  (hib/  sworn  implies  that 
the  oath  was  administered  with  the  recjuisite  fornnility  and 
solemnity;  that  the  jurors  in  open  court  wore  required  to  hold 
up  their  hands  and  promise  to  ])erform  the  duties  specified, 
there  being  an  approi)riate  reference  to  the  Deity;  such  as  "in 
the  presence  of  tlie  ever-living  God,"  or  "  so  help  you  God." 
See  Wan/iam  v.  S'tato,  25  Ohio  St„  001;  Barthtt  v.  State,  28 
Ohio  St.,  (500;  lurr  v.  State,  3G  Ohio  St.,  014,  This  disposes 
of  counsel's  objection  in  so  far  as  it  relates  to  leaving  out  the 
invocation  in  (juestion.  Since,  however,  the  record  attempts 
to  specify  tlie  duties  which  the  jury  in  tiiis  case  were  sworn  to 
perform,  we  are  inclined  to  think  there  should,  as  to  such 
duties,  be  no  nmterlal  omission,  Ihit  no  objection  can  be  main- 
tained ui)on  this  ground.  The  jury  were  sworn  to  "  well  and 
truly  try  the  issue  joined,  and  a  true  deliverance  make  be- 
tween the  people  of  the  state  of  Colorado  and  Si  Minich,  the 
l)risoner  at  the  bar,  and  a  true  verdict  render  according  to  the 
law  and  the  evidence."    The  expression  "  whom  you  have  in 


AMERICAN  CRIMINAL  REPORTS, 


charge  "  is  in  no  sense  material.  It  adds  nothing  in  explana- 
tion of  their  duties,  nor  does  it  in  any  way  enhance  the 
solemnity  of  the  oath;  its  omission,  therefore,  does  not  vitiate 
the  proceeding.  In  most  of  the  cases  cited  by  counsel  for 
plaintiff  in  error,  the  defects  held  fatal  consisted  in  omitting 
important  matters  pertaining  to  the  duties  of  jurors. 

7.  It  is  claimed  tbnt  +bp  "ighth  instruction  given,  declaring 
the  law  as  to  acce.sjori^  k  e  the  fact,  was  authorized  by  no 
evidence  in  the  recorc  • .  vy  have  misled  the  jury.  But 
little  proof  is  required  to  suppo:'t  an  instruction.  The  convic- 
tion in  this  case  rests  cutivoly  Uj)o^  circumstantial  evidence. 
It  appeared  from  examination  of  ino  ground  where  the  body 
of  deceased  was  found  that  a  struggle  had  taken  place;  that 
probably  two  or  more  persons  were  engaged  in  the  killing. 
The  fatal  shot  must  of  course  have  been  fired  by  one  of  them. 
And  supposing  Minich  to  have  been  one  of  these  persons,  it 
might  be  impossible  to  kno  beyond  a  reasonable  doubt 
whether  he  himself  or  a  confederate  did  the  shooting;  but 
under  the  statute  whether  he  did  or  not  was  a  matter  of  no 
importance.  He  was  charged  in  the  indictment  both  as  prin- 
cipal and  0^-  accessory  before  the  fact.  If  he  was  an  accessory 
before  the  fact,  he  was  equally  guilty  of  the  crime  of  murder. 
The  circumstances  shown  fully  warranted  the  charge. 

8.  The  court  also  instructed  the  jury  as  follows: 

"You  are  the  sole  judges  of  the  credibility  of  the  witnesses 
who  have  testified  in  this  case,  and  if  you  believe  that  any 
witness  in  the  case  has  wilfully  testified  falsely  to  any  material 
point  in  the  case,  you  are  at  liberty  to  disregard  the  entire 
testimony  of  such  witness." 

We  are  told  that  this  instruction  is  wrong  because  it  did  not 
contain  a  qualification  concerning  corroborating  testimony.  It 
is  said  that  if  a  witness  wilfully  testifies  falsely  to  a  material 
fact,  but  his  testimony  as  to  other  material  matters  is  supported 
by  corroborating  proofs  or  circumstances,  the  jury  should  be 
told  that  they  need  not  discard  it  in  so  far  as  it  relates  to  such 
other  matters.  This  position  would  i)ei'haps  be  correct  should 
a  court  assume  the  doubtful  authority  of  directing  the  jury 
that  they  jmist  disregard  the  entire  evidence  of  a  witness  wil- 
fully testifying  falsely  to  one  material  fact ;  but  it  is  not  correct 
in  cases  like  the  present,  where  the  court  simply  suggests  that 


I 


I 


MINICH  v.  PEOPLE. 


31 


the  pvymai/  disregard,  or  that  they  are  at  Uherty  to  disregard, 
the  testimony  of  such  witness.  In  ITamUUm  v.  People,  29 
Mich.,  173,  tlie  court  say:  "While  the  jury  cannot  be  com- 
pelled to  disregard  all  the  testimony  of  a  witness  who  has 
wilfully  falsified,  yet  they  may  do  so  if  they  do  not  trust  it." 
In  State  v.  Divlre,  25  Mo.,  553,  the  judge  who  writes  the  opin- 
ion uses  this  language: 

"  In  my  opinion  if  the  jury  believe  that  a  witness  has  wil- 
fully testified  falsely  in  respect  to  a  material  fact,  it  is  their 
duty  to  disrenard  the  whole  of  his  tcstimonv,  and  thev  should 
be  so  instructed  by  the  court;  but  the  other  members  of  the 
court  think  that  the  jury  ought  only  to  be  told  that  they  way 
do  what  1  think  they  are  hound  to  do."  See  Paulette  v.  Brown, 
40  Mo.,  52;  Petiplc  v.  Sprayue,  53  Cal.,  491;  Day  v.  Crmcfcnl, 
13  Ga.,  508. 

0.  The  thirteenth  instruction  contained  in  the  charge  reads 
as  follows : 

"  The  defendant  in  this  case  is  a  competent  witness  in  his 
own  behalf, and  you  are  the  sole  judges  of  his  credibility;  and 
in  determining  such  credibility  you  are  at  liberty  to  take  into 
consideration  any  interest  that  the  testimony  may  show  such 
witnesses  to  have  in  the  result  of  this  case,  if  any  is  shown. 
Aiy  motive  that  the  testimony  may  show  him  to  have  to  in- 
duce him  to  testify  falsel}',  if  any  is  shown;  his  manner  on  the 
witness-stand ;  the  probability  or  improbability  of  his  state- 
ments; tiie  consistency  or  inconsistency  of  his  statements  one 
with  the  other,  and  in  fact  all  the  circumstances  proven  in  the 
case  that  may  enlighten  you  as  to  whether  such  witness  is 
telling  the  truth  or  not." 

It  is  claiuKHl  that  this  part  of  the  charge  is  error,  for  the 
reason  that  it  imi)roperly  singles  out  the  testimony  of  the 
defendant  and  directs  the  attention  of  the  jury  thereto.  There 
can  be  no  doubt  as  to  the  impropriety  of  the  court's  selecting 
and  giving  undue  prominence  to  certain  facts,  or  commenting 
thereon  to  the  exclusion  of  certain  other  and  important  parts 
of  the  tostii  tny.  Indeed,  under  our  ])ractice.  Ins  province  is 
to  state  the  law, and  omit  all  comment  upon  the  evidence;  but 
we  know  of  no  rule  which  prohibits  the  court's  mentioning,  in 
an  appropriate  wjiy,  a  particular  witness  or  class  of  witnesses. 
Our  statute,  speaking  with  reference  to  the  testimony  of  a 


I:    i 


i'l 


32 


AMERICAN  CRIMINAL  REPORTS. 


person  on  trial  for  crime,  says  that  his  interest,  by  reason  of 
this  fact,  "  may  be  shown  for  the  purpose  of  affecting  liis  cred- 
ibility." '  In  weighing  the  testimony  of  sucli  person,  and  pass- 
ing upon  its  credibility,  tlie  jury  have  an  undoubted  right  to 
consider  all  the  circumstances  under  which  it  is  given,  including 
his  particular  personal  interest  in  the  result  of  the  trial;  and  it 
is  not  error  for  the  court  to  remind  them  of  the  latter  circum- 
stance, ])rovided,  as  in  this  instance,  he  refrains  from  intimat- 
ing or  suggesting  the  degree  of  weight  to  be  given  it.     See 
BiilUner  v.  People,  05  III,  301;  Pcoj>le  v.  Mon-cnr,  00  Cal,  142. 
10.  The  fourteenth  instruction  allowed  says  to  the  jury: 
"  You  are  further  instructed  that,  while  you  are  not  to  find 
the  defendant  guilty  if  you  entertain  a  reasonable  doubt  of  his 
guilt,  you  are  not  to  search  for  a  doubt.    The  doubt  referred 
to  must  be  such  a  doubt  as  would  naturally  arise  in  the  mind 
of  a  reasonable  man  upon  review  of  all  the  evidence  in  the 
case.    It  means  a  serious,  substantial  and  well-founded  doubt, 
and  not  a  mere  possibility  of  a  doubt.    It  is  svoh  a  doult  as, 
in  the  important  tramaetlons  of  life,  ivould  cause  a  reasonable 
and  prudent  man  to  hesitate  and  pause;  and  when  you  can 
say,  after  considering  all  the  evidence  in  the  case,  that  you 
have  an  abiding  conviction  of  the  truth  of  the  charge,  then 
vou  are  in  law  satisfied  bevond  a  reasonable  doubt." 

Considering  this  instruction  as  a  wliole,  we  discover  nothing 
objectionable  therein.  Counsel  argue  that  tlie  jjortion  thereof 
which  we  have  italicized  was  misleading  to  the  jury ;  that  from 
it  they  were  given  to  understand  that  if,  in  the  important 
transactions  of  life,  a  reasonable  man  would  act,  then  the 
doubt  spoken  of  in  the  instruction  Avould  not  exist.  If  their 
interpretation  were  correct,  the  objection  would  be  much  more 
difficult  to  answer,  because  a  reasonable  and  ])rudent  man 
often  acts  in  connection  Avith  his  important  business  upon  a 
mere  preponderance  of  proofs  or  considerations;  and  he  may 
have  many  serious  and  reasonable  misgivings  as  to  the  propri- 
ety of  the  step  taken ;  but  juries  in  criminal  cases  must  acquit, 
if  there  exist  in  their  minds  a  single  reasonable  doubt.  We, 
however,  think  the  inference  drawn  from  the  instruction  by 
counsel  unwarranted.  The  language  under  consideration  does 
not  declare  that  the  doubt,  being  defined,  is  one  upon  which  a 
reasonable  man  would  act.    The  jury  are  thereby  informetl 


that  it  is  I 
dent  man 
tween  he 
leads  a  ra; 
such  a  doi 
in  the  ira 
mind  of  a 
to  hesitatf 
doubt  is  n 
in  a  crimi 
careful  ej 
structions 
wherein  tl 
trol  a  reas 
mentionei 

11.  The 
the  coui't'i 
of  their  i 
amended 
cases  whe 
dence  onb 
esis  upt)n 
acquit.  A 
sonable  or 
from  the  ( 
V.  C'ronin, 
V.  State,  51 

12.  The 
numbered 
instructioi 
fully  cove 
thtire  are  t 
a  good  ins 
cumulativi 
propositio 
in  the  san 
and  confu 

13.  The 
importanc 
sustain  the 

Voi 


i 


MINICH  V.  PEOPLE. 


33 


that  it  is  such  a  doubt  as  would  cause  a  reasonable  and  pru- 
dent man  to  hesitate  and  paxisei  there  is  a  vast  difference  be- 
tween hesitating  or  pausing  and  acting.  Tlie  doubt  which 
leads  a  man  to  hesitate  or  pause  may  be  very  far  from  being 
such  a  doubt  as  would  control  his  action,  and  we  think  that  if, 
in  the  important  transactions  of  life,  no  doubt  arises  in  the 
mind  of  a  reasonable  and  prudent  man  which  would  lead  him 
to  hesitate  or  to  pause  and  consider  of  his  future  action,  that 
doubt  is  not  such  a  reasonable  doubt  as  would  justify  the  jury 
in  a  criminal  case  in  returning  a  verdict  of  acquittal.  Upon  a 
careful  examination  of  the  cases  it  will  be  found  that  the  in- 
structions on  this  subject  which  are  held  erroneous  are  those 
wherein  the  doubt  is  defined  to  be  such  an  one  as  would  conr 
ti'ol  a  reasonable  man,  or  lead  him  to  ad,  in  the  transactions 
mentioned. 

11.  Tiic  objection  urged  by  counsel  for  plaintiff  in  error  to 
the  coui't's  modification  of  the  fifth  instruction  asked  in  behalf 
of  their  client  is  not  well  taken.  By  this  instruction,  as 
amended  and  given,  the  jury  are  substantially  told  tliat,  in 
cases  wiiere  tiie  conviction  is  to  rest  upon  circumstantial  evi- 
dence only,  if  there  is  any  other  reasonable  theory  or  hypoth- 
esis upon  which  the  killing  may  be  accounted  for,  they  are  to 
acquit.  AVe  do  not  miderstand  the  law  to  be  that  any  unrea- 
sonable or  '///<(/y///<?/7/ hypothesis,  though  it  be  supposed  to  arise 
from  the  evidence,  will  justify  a  verdict  of  not  guilty.  People 
V.  C'i'onin,  34  Cal.,  HU;  State  v.  Nelson,  11  Xev.,  334;  Ilouser 
V.  State,  58  Ga.,  78. 

12.  Tlie  court  did  not  err  in  refusing  to  give  instructions 
numbei'cd  3  and  4  asked  by  the  defendant.  Assuming  these 
instructions  to  state  correct  pi-opositions  of  law,  they  were 
fully  covered  by  portions  of  tiio  charge  allowed;  and  while 
there  are  some  cases  which  seem  to  recognize  the  doctrine  that 
a  good  instruction  asked  should  be  given,  though  it  be  entirely 
cumulative,  we  think  the  converse  is  the  better  rule.  When  a 
proposition  of  law  is  once  clearly  stated,  the  repetition  thereof 
in  the  same  or  different  language  could  only  tend  to  embarrass 
and  confuse  the  jury. 

13.  The  last  ])osition  of  counsel  which  we  deem  of  sufficient 
importance  to  notice  is  that  tlie  evidence  does  not  justify  or 
sustain  the  verdict.     In  view  of  the  gravity  of  this  case,  we 

Vol.  V— 3 


/  H 


31 


AMERICAN  CRIMINAL  REPORTS. 


have  exainincd  the  vohiminoiis  record  with  more  than  tlie 
usual  care.  As  a  result  of  such  investigation  we  do  not  feel 
warranted  in  interfering  upon  the  ground  of  insufficient  evi- 
dence. The  conviction,  it  is  true,  is  based  upon  circuuistantial 
evidence.  Yet  tliere  is  woven  about  the  defendant  a  web  of 
circumstances  which,  coupled  with  his  attempted  avoiihince 
tliereof,  jwint  irresistibly  to  him,  notwitlistanding  iiis  chiim  of 
an  alihi,  as  one  of  the  guilty  ])arties.  His  exi)hinations  of 
some  of  the  suspicious  incidents  disclosed  by  the  prosecution, 
such  as  his  sudden  acquisition  of  money  similar  in  denomina- 
tion to  that  taken  from  the  body  of  the  deceased,  were  accom- 
panied by  so  many  improbable  circumstances  that  the  jury 
might  well  have  regarded  them  as  strong  corroborating  evi- 
dences of  guilt. 

The  defense  has  been  ably  conducted  througliout.  From 
first  to  last  counsel  have  spared  no  honorable  effort  to  avert 
the  demands  of  retributive  justice.  They  have  assigned  for 
consideration  and  skillfully  argued  in  this  court  every  question 
which  could  possibly  lay  the  foundation  for  legal  interference. 
No  stone  has  been  left  unturned  in  the  effort  to  rescue  their 
unhappy  client  from  the  doom  awaiting  him.  IJut  in  the  dis- 
charge of  the  duties  imposed  upon  us,  and  under  the  solemn 
obhgation  of  our  oihcial  oath,  Ave  are  reluctantly  compelled  to 
say  that  they  have  been  unsuccessful. 

The  judgment  is  affh-med,  and,  in  pursuance  of  the  statute, 
an  order  will  be  entered  of  record  designating  the  5th  of  Feb- 
ruary,  A.  D.  1880,  as  the  date  for  executing  the  sentence  pro- 
nounced. 


People  v.  Ziximkrman. 


(65Cal.,307.) 

Accomplice:  Tvdbnony  of. 
Corroboration  op  testimony  of  an  accomplice.— The  testimony  of  an 
accomplice,  corroborated  by  evidence  of  an  admission  made  by  the 
defendant  connecting  liim  with  the  killing,  is  sufficient  to  sustain  a 
conviction  of  murder;  and  the  testimony  of  a  constable,  to  whom  the 
witness,  who  testified  to  the  admission,  had  repeated  the  conversation, 
is  admissible  to  fix  the  date  of  such  adnussion. 

Appeal  from  a  judgment  of  the  superior  court  of  Amador 
county,  and  from  an  order  refusing  a  new  trial. 


A.  C.  . 

Attnrth 

Mvuicf 
der.  Till 
being  an  ( 
The  delVi 
on  the  gr 
was  not  c 
that  Xeif 
for  whicli 
seled.  adv 
was  com 
formed  I) 
coi'i'olHjrn 
niissi<jn  ni 
of  deceas 
and  dct'oi 
and  said  i 
cut  that  J 
this  was.' 
what  der( 
as  to  the 
purpose  » 
l)ose  of  f 
ceased, 
to  him  al 
of  trial,  ( 
of  this  e\ 
icide  was 
fourteen 
1882,  hav 
to  Mareii 
name  Fi( 
of  the  he 

The  w( 
U'as  entir 

Judgin 


M 


OKKl!- 


PEOPLE  V.  ZIMMERMAN. 


35 


A.  C.  lira w I),  for  appellant. 
Aifi'i'iHij-General  2rarshall,  Tor  respondent. 

]\[vKroK,  J.  The  defendant  Avas  accused  of  the  crime  of  mur- 
der. The  principal  witness  was  (mo  NetF,  who  testified  to  his 
heinganeye-witne.ss  of  an  assault  by  defendant  upon  deceased. 
Tile  defense  objected  to  tlie  admission  of  tlie  evid^mce  of  Xeff 
on  tlie  oTound  that  the  latter  was  an  accomplice,  and  that  he 
was  not  corroborated.  Penal  Code,  ji  1 1 1 1 .  It  does  not  appear 
that  Xelf  was  at  all  concermMl  in  the  commission  of  the  crime 
for  which  the  defendant  was  on  trial,  nor  that  he  had  coun- 
seled, advised,  aided  or  encoura<fed  its  commission;  nor  that  it 
was  committed  in  carrying-  into  ell'cct  an  unlawful  design 
formed  by  them.  Iilven  if  Xelf  had  been  an  accomplice  he  was 
currobijrated  by  the  witness  Alareno,  who  testilied  to  an  ad- 
mission ma<le  by  defendant  connecting'  himself  with  the  killing 
of  deceased.  ]\[areno  testified  to  a  quarrel  between  himself 
and  defendant,  in  which  he  said:  ''  Defendant  got  mad  at  rae 
and  said  to  me  that  he  would  cut  me  up  just  the  same  as  he 
cut  tliat  iUan  in  Fiddletown.  I  don't  remember  exactly  when 
this  was."  Mareno  swore  that  he  went  and  told  a  constable 
what  defendant  had  said.  The  constable  was  called  and  asked 
as  to  the  date  of  the  complaint  nuide  by  ]\[areno,  not  for  the 
l)urpose  of  having  the  conversation  i'e])eated.  but  for  the  pur- 
l»ose  of  fixing  the  date  with  reference  to  the  killing  of  de- 
ceased. Tlie  constal)le  swore  that  ^fareno  made  a  complaint 
to  him  about  defendant  some  fourteen  months  before  the  time 
of  trial,  October  l."),  iSSo.  AVe  see  no  error  in  the  admission 
of  this  evidence  for  the  purpose  of  fixing  the  date.  The  hom- 
icide was  January  2."»,  188 1 ;  and  the  complaint  was  made  about 
fourteen  months  before  October  15,  18815,  or  about  August  15, 
1882,  having  a  tendency  to  show  that  defendant,  in  his  threat 
to  Mareno,  had  reference  to  the  killing  of  deceased.  The 
name  Fiddletown  was  one  of  the  names  by  which  the  location 
of  the  homicide  was  known. 

The  weight  to  be  given  to  the  evidence  of  the  witness  Xeff 
Was  entirely  with  the  jury. 

Judgment  and  order  affirmed. 

MouRisoN,  C.  J.,  Ross,  J.,  and  Tuobnton,  J.,  concurred. 


t 


il'! 


t 


/  -^ 


89 


AMERICAN  CRIMINAL  REPORTS. 


Sharpstein,  J.  I  concur  in  the  affirmance  of  the  judgment 
and  order  appealed  frcn.  The  record,  in  my  opinion,  dis- 
closes no  substantial  error. 

MoKiNSTKy,  J.,  concurred  on  the  ground  first  considered  by 
Mr.  Justice  Mybick. 


Ballard  v.  State. 


(43  Ohio,  340.) 
Arrest  withoot  warrant:  Construction  —  Carrying  concealed  weapons. 

1.  Arrest  by  a  city  marshal  without  warrant  — Construction.— 
Ill  reaching  a  determination  as  to  the  power  of  the  marshal  of  a  imi- 
nidpal  corporation  to  arrest  without  warrant,  section  l>^l9of  the  Re- 
vised Statutes,  vvhidi  makes  it  the  duty  of  that  otHcer  to  arrest  any 
person  "in  the  act  of  committing  any  offense,"  etc.,  and  section  7129 
of  same  statutes,  which  makes  it  the  duty  of  certain  ofHcers  named, 
including  such  m.arslial,  "to  arrest  and  detain  any  person  found  vio- 
lating any  law,"  etc.,  should  he  construed  together  to  determine  the 
exten'.  of  such  power. 

3.  Carrying  concealed  weapons.— Under  these  sections  a  marshal  of  a 
municipal  corporation  is  authorized,  without  warrant,  to  arrest  a  per- 
son found  on  the  public  streets  of  the  corporatifin  carrying  concealed 
weapons  contrary  to  law,  although  he  has  no  i)revious  knowledge  of 
the  fact,  if  he  acted  bona  fide,  and  upon  such  information  as  induces 
an  honest  belief  that  the  person  arrested  is  iu  the  act  of  violating  the 
law. 

Motion  for  leave  to  file  petition  in  error  to  the  court  of 
common  pleas  of  Greene  county. 

A  great  number  of  errors  are  assigned,  all  of  which  have 
been  passed  upon  by  tlie  court,  but  only  one  is  reserved  for 
report.  The  indictment  was  for  murder  in  the  first  degree,  in 
killing  one  John  T.  Van  Doren,  marshal  of  the  town  of  Wil- 
mington, Clinton  county,  and,  on  change  of  venue,  the  accused 
w;is  convicted  and  sentenced  for  manslaughter  in  Greene 
county.  Van  Doren,  as  marshal,  was  in  the  act  of  arresting 
Ballard  for  carrying  concealed  weapons  when  he  was  shot  by 
the  latter.  The  marshal  had  no  warrant.  There  was  resist- 
ance by  Ballard,  and  a  struggle,  during  which,  by  the  discharge 
of  Ballard's  pistol,  Van  Doren  was  killed.    Whether  the  arrest 


without  . 
one  thus 
involved 
charged  i 

"  In  ref 
arrest  or 
of  Ohio  t 
in  the  act 
state,  and 
other  con 
ing  to  tlu 
arrest  dej 
person 
latin^ 
the  beUbi 
making  tl 
arrested,  ^ 

"The  I 
arrest  of 
committii 
state  that 
of  the  vii 
the  defer 
a  pistol  c( 
ing  such  ] 
no  lawful 
stances  in 
a  prudent 
property 
tempted  t 
arrest  for 
person;  a 
to  take  hi 
as  might 
If  the  jui 
arrest  wai 
mitted  to 

"The  I 
absolute  h 
the  laws  ( 


BALLARD  v.  STATE. 


37 


without  ..arrant  was  authorized,  and  under  what  circumstances 
one  tluis  arrested  may  defend  himself,  were  questions  directly 
involved  bv  the  evidence.  Upon  these  questions  the  court 
charged  us  follows : 

"  In  reference  to  the  lawfulness  or  unlawfulness  of  the  alleged 
arrest  or  attempt  to  arrest,  I  say  to  the  jury  that  by  the  laws 
of  Ohio  the  marshal  of  a  village  is  bound  to  arrest  any  person 
in  the  act  of  committing  any  offense  against  the  laws  of  the 
state,  and  forthwith  bring  such  person  before  the  mayor  or 
other  competent  authority  for  examination  or  trial.  Acuord- 
injr  to  the  literal  reading  of  the  statute  the  lawfulness  of  the 
arrest  depends  upon  one  thing  alone,  namely,  the  fact  that  the 
person  ested  is,  at  the  time  of  the  arrest,  in  the  act  of  vio- 
lating V  of  the  state;  and  it  is  claimed  by  the  state  that 
the  bein;i,  or  the  knowledge,  or  the  suspicion  of  the  oHicer 
making  the  arrest,  as  to  the  guilt  or  innocence  of  the  party 
arrested,  does  not  affect  the  question,  antl  is  immaterial. 

"  The  state  admits  that  deceased  had  no  warrant  for  the 
arrest  of  defendant,  and  no  claim  is  made  that  defendant  was 
committing  or  had  committed  a  felony.  It  is  claimed  by  the 
state  that  at  the  time  of  the  alleged  arrest  deceased  was  mai-shal 
of  the  village  of  Wilmington,  in  Clinton  county,  Ohio;  that 
the  defendant  was  going  about  the  streets  of  said  village  with 
a  pistol  concealed  upon  or  about  his  person;  that  he  was  carry- 
ing such  pistol  unlawfully, —  that  is  to  say,  he  was  engaged  in 
no  lawful  business,  calling  or  employment;  and  the  circum- 
stances in  which  he  was  placed  were  not  such  as  would  justify 
a  prudent  man  in  carrying  a  pistol  for  the  defense  of  his  person, 
property  or  family;  and  that  deceased,  learning  of  this,  at- 
tempted to  disarm  him  first,  and,  failing  in  that,  put  him  under 
arrest  for  carrying  such  weapon  concealed  upon  or  about  his 
person;  and,  having  so  put  him  under  arrest,  was  proceeding 
to  take  him  before  the  proper  officer  for  such  legal  proceedings 
as  might  be  warranted  by  law,  when  the  homicide  occuired. 
If  the  jury  are  satisfied  that  these  facts  are  proven,  then  the 
arrest  was  lawful,  and  defendant  ought  quietly  to  have  sub- 
mitted to  it. 

"  The  point  is  made  by  defense  that  unless  the  officer  has 
dbsohite  hiowledge  that  an  offense  is  being  committed  against 
the  laws  of  the  state,  he  has  no  right  to  arrest,  without  a  war- 


I 


■ppp 

i 


38 


AMERICAN  CRIMINAL  REPORTS. 


rant,  for  a  misdemeanor.  This  claim  is  not  tenable.  If  the 
person  arrested  is,  as  a  matter  of  fact,  in  the  act  of  committing 
such  offense  at  the  time  of  the  arrest,  and  the  otticcr  lias  in- 
formation or  knowledge  which  induces  him  to  reasonably  be- 
lieve, and  at  the  time  of  tlie  arrest  he  does  believe,  that  such 
offense  is  being  conunitted,  and  the  arrest  is  made  on  that  ac- 
count, this  is  sufficient. 

"  The  charge  in  the  Wci/mouth  Cdxe  has  been  read  as  to  this 
point  and  referred  to  in  your  hearing,  in  which  the  judge  told 
the  jury,  very  correctly,  that  the  officer  must  have  personal 
knowledge  of  the  offense  and  the  offender.  This,  as  T  say,  was 
good  law  for  that  case,  because  in  that  case  the  claim  was  not 
made,  as  it  is  here,  that,  as  a  matter  of  fact,  the  defendant  at 
the  time  of  the  arrest  was  committing  any  offense,  wov  was  there 
any  evidence,  as  I  understand  the  case,  to  sup])ort  such  claim. 

*'  The  state  there  claimed  that  the  accused  had  been  violating 
an  ordinance  of  the  village  of  Cedarville,  but  the  officer  was 
not  present  during  the  commission  of  the  unlawful  act,  and  it 
was  fully  completed  before  the  alleged  arrest  was  made.  If 
the  officer  has  no  knowledge  or  information  as  to  the  commis- 
sion of  the  offense,  I  say  to  the  jury  the  arrest  would  be  unlaw- 
ful, even  though  the  party  arrested  were,  at  the  very  time  of 
the  arrest,  in  the  act  of  committing  the  offense  for  which  he 
was  arrested. 

"  The  state  claims  that  if  an  officer,  at  a  venture,  without 
any  information,  knowledge  or  suspicion  on  the  subject,  arrests 
a  man  without  a  warrant  for  unlawfully  carrying  a  ])istol  con- 
cealed on  his  person,  and  it  turns  out,  as  matter  of  fact,  that 
the  party  arrested  is,  at  the  time  of  the  arrest,  committing  the 
offense  for  which  he  is  arrested,  the  officer  is  protected,  and 
the  arrest  is  lawful.  This  claim,  I  say  to  the  jury,  cannot  be 
allowed.  In  such  case,  to  make  the  arrest  lawful,  the  officer 
should  believe  that  the  party  arrested  is  guilty  of  the  offense 
for  which  the  arrest  is  made,  and  the  belief  should  be  based  on 
such  facts  or  such  information,  or  both,  as  might  reasonal)ly 
induce  such  belief." 

Counsel  for  defendant  excepted  to  this  charge  on  the  ground 
that  it  did  not  correctly  state  the  law  of  arrest  without  warrant, 
nor  the  right  of  the  pcrsoij  arrested  to  defend  himself  in  such 
a  case. 


BALLARD  v.  STATE, 


39 


C.  IT'  Blackburn  and  Smith  <&  Savage,  for  the  motion, 
Ja/iics  Zaiorence,  attorney-general,  cotitra. 

Jo'iNsoN,  J.  By  section  7129,  Rev,  St.,  "a  sheriff,  deputy- 
sheriff,  constable,  niarslial  or  deputy-marshal,  watchman  or 
poUce  oflicer  shall  arrest  and  detain  any  person  found  violat- 
ing any  law  of  this  state,  or  any  legal  ordinance  of  a  city  or 
village,  until  a  legal  warrant  can  be  obtained,"  By  section 
184^7  the  marshal  of  municipal  corporations  is  the  chief  minis- 
terial officer  of  the  corporation.  By  section  ISiS  he  is  to  exe- 
cute all  writs  and  process,  etc,  Bv  section  1849  he  is  to  arrest 
all  disorderly  pei'sons  in  the  corporation,  suppress  all  riots,  dis- 
turbances and  breaches  of  the  peace,  pursue  and  arrest  any 
person  Hoeing  from  justice  in  any  part  of  the  state,  arrest  any 
person  In  the  aet  (>f  eoinin'dting  any  ofense  against  the  laws  of 
the  state  or  ordinances  of  the  cori)oi'ation,  and  fortliwith  bring 
such  person  before  the  mayor  or  other  competent  authority  for 
examination  or  trial. 

Tliese  two  sections  (ISii*  anil  7129)  provide  what  a  marshal 
of  a  municipal  corporation  may  do  as  a  conservator  of  the 
peace  witliout  a  warrant.  Section  1849  is  the  same  as  section 
142  of  tlie  Municipal  Code  of  1809  (GG  Ohio  L.,  173),  where  the 
authority  oxteiuls  to  the  arrest  of  any  person  "  in  the  act  of 
committing  an  offense."  Section  7129  is  copied  from  6G  Ohio 
L.,  291  (section  21  of  the  Code  of  Criminal  Procedure),  Avhere 
the  words  are,  "  any  ])erson  found  violating,"  etc. 

Section  1849  is  the  primary  source  of  a  marshal's  authority, 
and  if  there  was  any  substantial  difference  in  the  words  "  in 
the  act  of  committing  any  offense  "  and  "  found  violating  any 
law,"  as  fouml  in  section  7129,  the  former  would  be  adopted  if 
necessar}'  to  protect  the  olficer.  But  we  think  there  is  no  sub- 
stantial difference.  Under  either  the  citi/en  is  protected  from 
arrest  witliout  warrant  to  tlic  same  degree  as  under  the  other. 
Botli  greatly  enlarge  the  power  to  arrest  without  warrant  in 
cases  of  misdemeanors  from  what  it  was  at  common  law,  wliere 
a  constable  had  oi'iginal  and  inherent  power  to  arrest  for  breach 
of  the  i)eace,  or  for  felony  actually  committed,  etc.,  or  in  the 
act  of  committing  treason  or  felony,  etc.  4  Bl.  Comm.,  *292; 
Hale,  P.  C.  587;  1  Bish.,  §g  1G7,  1G8.  Section  1849  is,  in 
legal  effect,  the  common-law  rule  as  to  arrests  by  sheriffs  and 


M'- 


E 


hi 


40 


AMERICAN  CRDUNAL  REPORTS. 


constables  without  warrant,  made  applicable  to  other  crimes 
than  treason,  felony  or  breach  of  the  peace. 

"With  respect  to  the  charge  given  there  was  evidence  tending 
to  show  that  the  deceased  was  marshal  of  the  village  of  Wil- 
mington, and  known  to  Ballard  to  be  such  at  the  time  of  the 
attempted  arrest  and  shooting;  that  Ballard  was  on  the  streets 
of  the  toAvn  carrying  concealed  weapons  contrary  to  law ;  that 
he  discharged  the  pistol,  killing  the  marshal,  while  he  was  en- 
gaged in  resisting  the  arrest.  In  making  the  arrest  for  carry- 
ing such  weapons,  the  marshal  acted  on  information  and  belief 
and  not  from  actual  personal  knowledge  of  the  facts.  This 
information,  which  proved  to  be  true,  was  based  upon  such 
statements  of  fact  and  from  such  sources  as  would  warrant  a 
prudent  man  in  acting. 

Under  these  circumstances  we  think  the  officer  was  in  the 
performance  of  official  duty.     This  does  not  authorize  such  an 
arrest  without  warrant,  on  a  mere  venture,  without  knowledge 
or  reliable  information,  though,  in  fact,  as  afterwards  discov- 
ered, concealed  weapons  were  found.    The  accused  was  "  in 
the  act  of  committing  an  offense,"  within  the  purview  of  sec- 
tion 1849,  and  "  was  found  violating  a  law  of  the  state,"  within 
the  terms  of  section  7129.    The  accused  was  committing  a  con- 
cealed crime,  not  one  open  to  view,  and  hence  the  greater 
necessity  of  acting  on  knowledge  or  information.    Good  faith, 
an  honest  belief,  based  upon  reliable  information  which  proves 
to  be  true,  is  all  the  law  requires.    We  need  not  inquire  what 
is  the  law  if  the  information  is  false  and  the  party  is  innocent, 
as  that  question  is  not  before  us.    Even  in  such  a  case,  where 
the  official  character  of  the  officer,  as  well  as  the  reason  for  the 
arrest,  is  known  to  the  party  arrested,  it  would  be  no  defense 
to  a  charge  of  manslaughter  if  he  purposely  took  the  life  of 
the  officer  to  prevent  his  arrest.    In  such  a  case  it  would  rather 
be  his  duty  to  yield  obedience  to  the  efforts  of  the  officer,  trust- 
ing to  the  law  for  his  redress,  when  there  is  no  apparent  dan- 
ger to  life  or  of  great  bodily  harm. 

Upon  a  careful  consideration  of  the  charge  of  the  court  upon 
this  point  we  think  there  is  no  error. 


Okey,  J.,  dissented. 


Motion  overruled. 


i 


Note.— See  Fleetwood  v.  Com,,  4  Am.  C.  R.,  36,  and  note. 


1.  Arrest 

arrest 
to  be 
the  f  ii 

2.  Where 

is  siiffl 
a  sum 
for  ass 
oner. 

Before 
Green  am 
Error  t 
Indictn 
and  Ilirai 
assault  an 
ser. 

T.  R. 

plaintiffs  ; 

John  3. 

for  the  CO 

Mr.  Ju5 
After  ] 
penalties 
clares,  "  I 
or  other 
upon,  seci 
character 
the  purp( 
with  or  \A 
It  is  n 
whom  th 
openly  er 
act;  inde 
in  error  \ 


BHOVLIN  V.  COMMONWEALTH. 


Shovlin  et  al.  v.  Commonwealth. 


41 


(106  Pa.,  369.) 
Arrest  :  Officer  —  Assault  and  battery. 

1.  Arrkst  without  warrant. —  When  an  officer  is  empowered  by  law  to 

arrest  witlioiit  warrant,  he  is  not  in  every  case  bound  to  give  the  party 
to  be  arrested  clear  and  distinct  notice  of  his  purpose  to,  and  also  of 
the  fact  that  he  is  legally  qualified  to,  make  the  arrest. 

2,  Where  the  offender  in  question  is  openly  engaged  in  breaking  the  law,  it 

is  sufficient  for  the  officer  to  announce  his  official  position  and  demand 
a  surrender.  If  this  is  refused,  the  officer  is  not  liable  to  indictment 
for  assault  by  reason  of  the  fact  that  he  used  force  to  secure  his  pris- 
oner. 

Before  Mecur,  C  J.,  Gordon,  Paxson,  Trunkey,  Sterrett, 
Green  and  Clark,  JJ. 

Error  to  the  Court  of  Quarter  Sessions  of  Luzerne  County. 

Indictment  against  Charles  Shovlin,  Charles  AV.  Tammany 
and  Iliram  Khoades,  containing  two  counts,  viz. :  (1)  aggravated 
assault  and  battery ;  (2)  assault  and  battery  on  one  T.  E.  Bow- 
ser. 


T.  R.  Martin,  John  T.  Lenahan  and  Hugh  A.  Gates,  tot 
plaintiffs  in  error. 

John  Mcdahren,  district  attorney,  and  Henry  W.  Palmer^ 
for  the  commonwealth. 

Mr.  Justice  Steureti'  delivered  the  opinion  of  the  court: 
After  prohibiting  various  forms  of  gambling,  prescribing 
penalties  therefor,  etc.,  our  crimes  act  of  March  31,  1860,  de- 
clares, "  It  shall  and  may  be  lawful  for  any  sheriff,  constable 
or  other  officer  of  justice,  with  or  without  warrant,  to  seize 
upon,  secure  and  remove  any  device  or  machinery  of  any  kind, 
character  or  description  whatsoever,  used  and  employed  for 
the  purpose  of  unlawful  gaming  as  aforesaid,  and  to  arrest, 
with  or  without  warrant,  any  person  setting  up  the  same." 

It  is  not  seriously  questioned  that  Bowsor,  the  person  on 
whom  the  alleged  assault  and  battery  wos  committed,  was 
openly  engaged  in  violating  both  the  letter  and  spirit  of  the 
act;  indeed,  it  is  very  evident  from  the  testimony  that  plaintiffs 
in  error  were  as  fully  authorized,  by  the  section  above  quoted, 


11 


'■&' 


II'! 


42 


AMERICAN  CRIMINAL  REPORTS. 


to  seize  the  gambling  apparatus  and  arrest  the  proprietor 
thereof,  as  if  they  had  been  armed  with  a  warrant  for  that 
purpose.  The  question,  therefore,  was  not  whether  they  were 
guilty  of  an  assault  and  battery  in  making  the  arrest,  but 
whether  t'^.ey  were  guilty  of  the  offense  for  which  they  were 
indicted  by  reason  of  their  having  used  more  force  than  was 
reasonably  necessary  under  the  circumstances;  and,  in  the 
main,  that  question  was  fairly  submitted  to  the  jury. 

The  lirst  assignment  of  error  is  not  sustained.  In  charging 
as  therein  specified,  the  learned  judge  expressed  a  decided 
opinion  as  to  the  effect  of  the  commonwealth's  testimony;  but 
the  jury  could  not  have  been  unduly  influenced  thereby,  for 
the  reason  that  in  the  very  next  sentence  he  said  to  them,  "  If, 
on  the  other  hard,  you  believe  the  evidence  of  the  defendants 
and  their  witnesses,  that  they  exercised  no  more  force  than 
was  necessary  to  vindicate  the  law  and  protect  themselves 
from  injury,  they  should  be  acquitted."  The  question  of  fact 
was  thus  left  to  tlie  jury  without  anything  more  than  a  mere 
expression  of  opinion  as  to  the  efl'ect  of  the  testimony,  if  be- 
lieved. 

One  of  the  questions  involved  in  the  second  specification  is, 
whether  an  officer,  autliorized  to  arrest  without  warrant,  is 
bound,  before  doing  so,  "  to  give  the  party  to  be  arrested  clear 
and  distinct  notice  of  his  purpose  to  make  the  arrest;  and  also 
of  the  fact  that  he  is  legally  qualified  to  make  it;"  in  other 
words,  may  the  officer  l)e  convicted  of  assault  and  battery  for 
making  tlie  arrest  without  lirst  giving  sucli  notice?  While,  in 
most  cases,  it  may  be  prudent  for  tiie  officer  to  give  the  notice 
before  making  the  arrest,  it  is  going  too  far  to  say,  in  efl'ect, 
that  he  is  recpiired  to  do  so;  and  therefore  we  think  Uie  learned 
judge  erred  in  cliarging  the  jury  as  lie  did  on  that  sul)ject.  In 
considering  tlie  (piestion,  as  presented  l)y  tlie  undis|)utod  facts 
of  this  case,  it  is  fair  to  assume  that  the  constable  and  his  assist- 
ants, plaintiffs  in  error,  were  authorized  to  make  the  arrest; 
that  the  authority  with  which  the  constable  was  expressly 
clothed  Ijy  the  act  was  at  least  equivalent  to  a  warrant.  It  is 
doubtless  the  duty  of  an  officer  who  executes  a  warrant  of 
arrest  to  state  the  nature  and  substance  of  the  process  which 
gives  him  the  authority  he  professes  to  exercise;  and  if  it  is 
demanded,  to  exhibit  his  warrant,  that  the  party  arrested  may 


WINSLOW  V.  THE  STATE. 


•43 


have  no  excuse  for  resistance.  1  Chit.  C.  L.,  51.  On  the  other 
hand,  as  is  said  in  Commonwealth  v.  Oooleij  et  al.,  G  Gray,  350, 
356,  '•  the  accused  is  required  to  submit  to  the  arrest,  to  yield 
himself  inunediately  and  peaceably  into  the  custody  of  the 
oHicer,  who  can  have  no  opportunity,  until  he  has  brought  his 
])risoner  into  safe  custody,  to  make  him  acquainted  with  tlie 
cause  of  his  arrest,  and  the  nature,  substance  and  contents  of 
the  warrant  under  which  it  is  made.  These  are  obviously  suc- 
cessive stejjs.  Tliey  cannot  all  occur  at  the  same  instant  of 
time.  The  ex])lanation  must  follow  the  arrest;  and  the  exhi- 
bition and  perusal  of  the  warrant  must  come  after  the  authority 
of  the  olHccr  has  been  acknowledged,  and  his  power  over  his 
prisoner  lias  been  ac(juiesced  in."  The  general  in'inciple,  thus 
stated,  is  e(|ually  apjjlicable  to  arrests,  without  warrant,  under 
autliority  of  tlie  statute.  The  second  assignment  of  error  is 
sustained. 

Judgment  reversed,  and  it  is  ordered  that  the  record,  Avith 
copy  of  the  foregoing  opinion,  setting  forth  the  cause  of  rever- 
sal, be  I'emitted  to  the  court  of  quarter  sessii^ns  of  Luzerne 
county  for  further  proceeding. 

See  note  to  Fleetwood  v.  The  Commonwealth,  4  Am.  Cr.  Rep.,  p.  36,  for 
cai»es  colk'tted  in  regard  to  tlie  duty  of  an  officer  in  making  an  arrest,  either 
with  or  without  a  wai'rant. 


WiNSLow  V.  The  State. 
(70  Ala.,  42.) 


Arson  :   Confen/tions  —  Corpus  delicti  —  Footprints  —  Threats  • 
Instructions  —  Bill  of  exceptions  —  Polling  jury. 


Motive  — 


1.  Defendant  cannot  be  convictkd  on  confessions  alone. —  In  a  crim- 
inal case,  a  conviction  cannot  be  had  on  the  extra-judicial  confessions 
of  the  defendant,  without  proof  aliunde  of  the  corjms  delicti;  but 
direct  and  positive  proof  of  that  fact  is  not  indispensable. 

3.  The  court  decides  on  the  competency,  the  jury  on  the  suffi- 
ciency, OF  evidence, —  The  sufficiency  of  the  proof  of  the  cori^us 
delicti  is  not  a  (juestion  of  law  for  the  decision  of  the  court,  but  a  (jues- 
tion  of  fact  for  the  jurj'  to  decide ;  and  while  the  court  must  decide,  in 
the  first  instance,  whether  the  evidence  adduced  is  prima  facie  suffi- 
cient to  go  to  the  jury,  the  jury  are  not  bound  to  hold  it  sufficient 
because  the  court  has  admitted  it. 


il« 


wmmm 


44 


AMERICAN  CRIMINAL  REPORTS. 


8.  Corpus  DEUon.—  In  a  prosecution  for  arson,  the  corpus  delicti  is  not 
the  fact  that  a  house  was  burned  down,  but  that  it  was  burned  by  the 
wilful  act  of  some  person  criminally  responsible  for  his  acts,  and  not 
by  natural  or  accidental  causes. 

4.  Footprints.—  Evidence  showing  that  the  fire  occurred  about  midnight, 
at  a  part  of  the  house  in  which  no  fire  had  been  used  during  the  day 
or  night ;  and,  when  first  discovered,  was  burning  on  the  uutside  of 
the  house ;  and  that  a  fresh  track  was  discovered  the  next  morning,  in 
a  lane  leading  from  the  public  road  to  the  house,  which  track  corre- 
sponded with  the  defendant's,  is  prima  facie  sufficient  proof  of  the 
corpus  delicti  to  render  the  defendant's  confessions  admissible  as  evi- 
dence. 

6.  Threats. —  The  defendant's  threats,  or  declarations  in  the  nature  of 
threats,  before  the  commission  of  the  offense  charged,  are  admissible 
as  evidence  against  him. 

6.  Ill-feeung  as  bearing  upon  motive.—  If  there  was  a  controversy 

between  the  defendant  and  the  occupants  of  the  house  burned,  as  to 
the  ownership  of  the  property,  and  it  wa-s  shown  that  the  defendant 
knew  the  occupants  had  a  certificate  of  entry  for  tlie  land,  which  cer- 
tificate was  in  the  house  at  the  time  of  the  alleged  burning,  proof  of 
these  facts  would  be  admissible,  as  tending  to  show  a  motive  for  the 
burning;  but  the  fact  being  only  collaterally  tmd  incidentally  in  issue, 
it  would  not  be  necessary  to  prove  the  entry  by  a  certified  transcript. 

7.  Bill  op  exceptions.— The  refusal  of  charges  asked,  which  are  not 

shown  to  have  been  asked  in  writing,  is  not  a  reversible  error ;  but, 
where  the  clerk  certifies  that  the  charges  are  on  file  in  his  office,  and 
are  marked  refused  in  the  handwriting  of  the  presiding  judge,  this 
makes  them  a  part  of  the  record  (Code,  section  3109),  and  enables  this 
court  to  revise  their  refusal,  although  the  bill  of  exceptions  does  not 
state  that  they  were  iisked  in  writing. 

8.  Probability  of  defendant's  innocence.  —  A  charge  asked,  which 

asserts  that  if,  from  the  evidence,  there  is  a  probability  of  the  defend- 
ant's innocence,  he  is  entitled  to  an  acquittal,  asserts  a  con-ect  legal 
proposition,  and  its  refusal  is  error. 
8.  PoLUNG  JURY.— The  statute  secures  to  the  defendant,  in  a  criminal 
case,  a  right  to  poll  the  jury  (Code,  section  4920),  in  order  to  ascertain 
whether  the  verdict  is  unanimous ;  but,  in  polling  them,  inquiry  can- 
not be  made  into  their  several  reasons  or  motives  for  assenting  to  the 
verdict. 


From  the  Circuit  Court  of  Pike. 
P.  Hubbard. 


Tried  before  the  Hon.  Jno. 


M.  iT.  Carlisle  and  Parh  c&  Son,  for  the  appellant. 
Thos.  K  McClellan,  attorney-general,  for  the  state. 

Clopton,  J.    The  American  authorities,  generally,  maintain 
the  principle  that  a  conviction  should  not  be  had  on  the  extra- 


judicial CO 
roborating 
delicti,  is 
rule.  Moi 
187;  Johns 
on  experie 
be  observe 
alleged  cri 
de.icc  of  tl 
fact  tlie  su 
circunistar 
Daculmn, 
Ev.,  sec.  3( 

Wo  can 
sufficiency 
the  court,  i 
observes : 
volves  the 
act  itself  \ 
son  chai'gc 
corpus  deL 
tainment  t 
conviction 
these  esser 
jury,  and  I 
hold  that 
propositioi 
tional  rigli 

In  Matt 
prosecutio 
defendant 
had,  it  wa 
preliuiinai 
should  pr 
ciency  of 
confession 
facie  that 
King  V.  Si 
tions  and 


WINSLOW  V.  THE  STATE. 


48 


judicial  confessions  of  the  defendant,  unsupported  by  any  cor- 
roborating facts  and  circumstances;  T^roof  aliunde',  of  the  corj)us 
delicti,  is  required.  Our  decisions  are  in  har.nony  with  this 
rule.  Mose  v.  State,  36  Ala.,  211;  ^fattheicH  v.  S^nte,  .55  Ala., 
187;  Johnson  v.  State,  59  Ala.,  37.  While  great  caution,  founded 
on  experience  in  the  administration  of  the  criminal  law,  should 
be  observed,  that  a  person  charged  may  not  be  punished  for  an 
alleged  crime  not  actually  committed,  direct  and  positive  evi- 
de.ice  of  the  ooi'jjus  delicti  is  not  indispensable.  Like  any  otlier 
fact  the  subject  of  judicial  investigation,  it  may  be  proved  by 
circumstantial  evidence.  State  v.  Kcelcr,  2S  la.,  551;  State  v. 
Davidson,  30  Vt.,  377;  1  Bish.  Cr.  Pro.,  sec.  1057;  3  Greenl.  on 
Ev.,  sec.  30. 

"Wo  cannot  assent  to  the  proposition  insisted  on,  that  the 
sufficiency  of  the  proof  of  tlie  cofpim  delicti  is  a  question  for 
the  court,  and  not  for  tiio  jury.  Greenleaf,  in  the  section  cited, 
observes:  "The  proof  of  tlie  charge,  in  criminal  causes,  in- 
volves the  proof  of  two  distinct  propositions:  First,  that  the 
act  itself  was  done,  and  secoiuUy,  that  it  was  done  by  the  per- 
son charged,  and  by  none  other —  in  other  words,  proof  of  the 
corpus  delicti,  and  of  the  identity  of  the  prisoner.''''  Tlie  ascer- 
tainment that  an  offense  has  been  committed  is  as  essential  to 
conviction  as  that  the  defendant  is  the  guilty  agent.  Both  of 
these  essential  propositions  are  for  the  determination  of  the 
jury,  and  both  must  bo  jtroved  beyond  a  reasonable  doubt.  To 
hold  that  the  court  must  decide  ultimately  either  of  these 
propositions  would  be  tantamount  to  a  denial  of  the  constitu- 
tional right  of  trial  by  jury. 

In  Matthews  v.  State,  snpra,  no  evidence  was  offered  by  the 
prosecution,  other  than  the  uncorroborated  confessions  of  the 
defendant;  and  as  on  these  alone  a  conviction  should  not  l)e 
had,  it  was  held  that  they  sliould  have  been  excluded.  Some 
preliminary  testimony,  tending  to  show  the  corpus  delicti, 
should  precede  the  admissi<jn  of  the  confessions.  The  suffi- 
ciency of  the  preliminary  proof  of  the  voluntary  character  of  a 
confession,  which  the  law  requires,  is  that  it  appear  j)/'///*^ 
faoie  that  the  confession  was  voluntary.  Mose  v.  State,  supra; 
King  V.  State,  40  Ala.,  314.  And  to  render  the  acts,  declara- 
tions and  conduct  of  each  person  in  promotion  of,  and  in  rela- 
tion to,  the  pur|)ose  of  a  conspiracy,  admissible  against  a 


:3' 


:(     1 


I;  \ 


^Pi^ 


4C 


AMERICAN  CRIMINAL  REPORTS. 


co-conspirator,  *'  a  foundation  must  be  laid,  by  proof  sufficient, 
in  the  opinion  of  the  presiding  judge,  to  establish,  />i't  ma  facie, 
the  existence  of  such  conspiracy."  Ifc Anally  v.  State,  74  Ala., 
9.  It  is  tlie  province  of  the  judge  to  determine  whctlier  tliere 
is  testimony  sufficient  to  make  it  appear,  prima  facie,  that  a 
crime  lias  been  committed.  Tlie  evidence  on  which  the  judge 
acts  may  not  necessarily  establish  the  corpus  delicti.  It  may 
be,  and  often  is,  conflicting  and  contradictory.  In  suoli  case, 
the  credibility  of  the  witnesses,  and  tlie  sufficiency  of  the  entire 
evidence,  are  for  the  ultimate  decision  of  the  jury.  In  arson, 
the  corpus  delicti  consists,  not  alone  of  a  building  burned,  but 
also  of  its  having  been  wilfully  tii-ed  by  some  resi)onsible  per- 
son. Burning  by  accidental  and  natural  causes  must  be  satis- 
factorily excluded,  to  constitute  sufficient  ])roof  of  a  crime 
committed.  This  de<jree  of  proof,  though  recjuisite  to  a  con- 
viction, is  not,  however,  antecedent  and  necessary  to  the  admis- 
sibility of  confessions. 

In  this  case,  there  was  evidence  tending  to  show  a  fresh  track 
in  the  lane  leading  from  the  road  to  the  house;  that  this  track, 
and  the  track  of  tlie  defendant,  corresjionded;  that  the  fire, 
when  first  discovered,  was  burning  on  the  outside,  about  six 
feet  from  the  ground,  at  a  ])art  of  the  house  in  which  there  had 
been  no  fire  during  the  night ;  that  the  fire  occurred  about  mid- 
night, and  spread  so  rapidly  that  only  one  bed  and  bedding 
were  saved.  While  there  was  home  conflict  in  the  testimony, 
and  there  was  evidence  tending  to  show  that  the  burning  may 
have  been  accidental,  the  evidence  tending  to  show  the  corpus 
delicti  is  sufiicient  to  lay  a  foundation  on  which  to  rest  the 
admissibility  of  the  confessions. 

The  previous  threats  of  the  defendant,  and  his  declarations 
in  the  nature  of  threats,  were,  on  the  same  principle,  properly 
admitted.  AV^hile  they  are  not,  of  themselves,  convincing  of 
guilt,  from  them,  in  connection  with  the  other  circumstances, 
if  believed  by  the  jury,  guilt  may  be  a  logical  sequence. 

The  certificate  of  entry  was  collaterally  and  incidentally  in 
issue,  and  was  shown  to  have  been  burned.  Its  real  existence 
was  immaterial.  If  there  was  a  controversy  in  respect  to  the 
entry  and  ownership  of  the  land,  and  the  defendant  was  pre- 
viously informed  and  believed  that  the  occupants  had  a  certifi- 
cate of  entry  in  the  house,  such  evidence  is  admissible,  and 


may  be  C( 
State,  70  . 
the  certifi( 

On  the 
charges  a^ 
cause  the 
The  clerk 
except  i  on  f 
indorsed 
charges  a  ] 
US. 

In  Ball 
reqiK^stcvl, 
innocence 
guilt,  and, 
propositi! » 
ment.  H 
trary  rule, 
defendant, 
ability  of 
acquittal, 
either  in  c 
their  plira: 

Section 
dered,  and 
requireme 
erally  ask 
negative,  1 
The  law  s 
polling  th( 
taining  tl 
which  infl 
not  be  in( 
sent  out  f( 
in  the  nej; 
ment  to  tl 
diet  of  the 

For  the 
remanded. 


WINSLOW  V.  THE  STATE. 


ir 


may  bo  considered  as  tending  to  show  a  motive.  Woo<l,i  v. 
State,  7n  Ala.,  3.5.  For  this  purpose,  a  certified  transcript  of 
the  certificate  is  not  requisite. 

On  the  record,  as  first  certified,  we  could  not  consider  the 
charges  aslced  by  the  defendant,  and  refused  by  tlie  court,  be- 
cause the  ])ill  of  excc|)tions  did  not  show  tliey  were  in  writing. 
The  clerk  has  certified  that  the  charges  copied  in  the  bill  of  . 
exceptions  are  in  writing,  and  on  fde  in  his  olhco,  and  each  is 
indorsed  refused  by  the  presiding  judge.  This  made  the 
charges  a  part  of  the  record.     Moh'de  /Sav.  JianJc  v.  Fry,  69  Ala., 

In   Ihi'ni  r.  State,  7+  Ala.,  38,  it  was  held  that   a  charge 
requ(>st(Ml,  in  these  words:     "  A  probability  of  the  defendant's 
innocence  is  a  just  foundation  for  a  reasonable  doubt  of  his 
i  guilt,  and,  therefore,  for  his  accputtal,"  assei'ts  a  correct  legal 

proposition,  and  its  refusal  will  work  a  reversal  of  the  judg- 
ment. ]V!f/ia//iN  r.  State,  ,52  Ala.,  -ill,  which  asserts  a  con- 
trary rule.  Wiis  oveiTuled.  The  fifth  charge  requested  by  the 
defendant,  which  asserts,  if  there  is  from  the  evidence  a  prob- 
al)ility  of  the  innocence  of  the  defendant,  he  is  entitled  to  an 
ac(|uittal,  should  have  been  given.  The  other  eluirges  are 
oitlier  in  conflict  with  the  ruh^s  we  have  above  stated,  or,  from 
their  phraseology,  are  calculated  to  mislead. 

Section  4'.t2o  of  the  code  pi-ovides:  "AVhen  a  verdict  is  ren- 
dered, and  before  it  is  recorded,  the  jury  nuiy  be  jiolled,  on  the 
requireuient  of  either  ])arty;  in  which  case  they  must  be  sev- 
erully  asked  if  it  is  their  verdict;  and  if  any  answer  in  the 
negative,  the  jury  must  be  sent  out  for  further  deliberation." 
The  law  secures  to  the  defendant  a  unanimous  verdict,  and 
polling  the  jury  is  the  means  provided  l)y  the  statute  of  ascer- 
taining that  each  juror  agrees  to  the  verdict.  The  motives 
whicli  influenced,  or  the  reasons  that  governed  the  juror,  can- 
not be  inquired  into.  The  statute  authorizes  the  jury  to  be 
sent  out  for  further  deliberation,  only  Avhen  one  or  more  answer 
in  the  negative.  The  answer  of  the  juror  expressed  his  agree- 
ment to  the  verdict,  and  thus  it  was  shown  to  be  the  joint  ver- 
dict of  the  entire  jury.    State  v.  John,  8  Tred.,  330. 

For  the  error  mentioned,  the  judgment  is  reversed  and  cause 
remanded. 


lU         I 


48 


AMERICAN  CRIMINAL  REPORTS 


Stitz  V.  State. 

(104  Ind.,  359.) 

Arson  :  Evidence  —  Instructions  —  Reasonable  doubt, 

1.  Evidence  to  show  motive.—  For  the  purpose  of  showing  a  motive  it 

is  competent  in  a  prosecution  for  arson  to  prove  an  overvaluation  of  in- 
sured property  destroyed  by  fire,  and  a  demand  of  the  insurer  for  such 
value. 

2,  Explanation  op  testimony  offered  to  show  motive. — Where  evi- 

dence tending  to  show  an  overvaluation  of  property  is  given,  and  there  is 
also  evidence  which  tends  to  show  that  it  was  made  by  mistake  of  fact 
or  error  of  judgment,  the  accused  is  entitled  to  an  instruction  that,  if 
the  overvaluation  arose  from  such  cause,  it  is  not  to  be  taken  aa  evi- 
dence of  a  criminal  motive  or  intent. 
8.  Reasonable  doubt. —  An  instruction  that:  "  while  each  juror  must  be 
satisfied  of  the  defendant's  guilt  beyond  a  reasonable  doubt,  to  authorize 
a  conviction,  such  reasonable  doubt,  unless  entertained  by  all  the  jurors, 
does  not  warrant  an  acquittal,"  is  erroneous. 

From  Jasper  Circuit  Court. 

a.  p.  I)e  Hart  and  S.  P.  Thompson,  for  appellant. 
M.  H.  Walker,  prosecuting  attorney,  and  K  P.  Jlammond, 
for  the  state. 

Elliott,  J,  The  indictment  upon  which  the  appellant  was 
convicted  charges  him  with  tlie  crime  of  arson ;  and  charges 
also  that  the  crime  was  committed  for  the  purpose  of  defraud- 
ing the  Phoenix  Insurance  Company,  who  had  issued  a  policy 
of  insurance  upon  the  building  burned.  The  state  was  permit- 
ted to  give  in  evidence  a  claim  made  by  the  appellant  for 
property  destroyed  by  the  fire,  and  to  prove  that  he  put  a  value 
upon  the  property  beyond  its  real  worth.  We  regard  this  evi- 
dence as  competent.  "We  do  not,  however,  agree  with  the 
counsel  for  the  state  that  it  was  competent  for  the  purpose  of 
impeaching  the  character  of  the  accused.  On  the  contrary,  we 
regard  the  theory  of  the  counsel  for  the  state  upon  this  point 
as  radically  erroneous.  Character  cannot  be  impeached  by 
evidence  of  specific  acts.  This  familiar  principle  shatters  the 
theory  of  the  state.  In  proceeding  upon  this  theory  counsel 
were  led  into  serious  error  in  their  argument  to  the  jury,  and 
the  court  followed  them  to  the  manifest  injury  of  the  appel- 
lant. 


-i 
^ 


We  put  ( 

potent  as  tt 

accused  ha: 

from  the  ii 

some  evide 

under  oath, 

tiiat  fact  w 

motive  for  i 

It  would,  h 

connection 

^v■eight,  but 

imiting  cha 

The  law 

commit  cri 

motiveless 

crime  is  tha 

it  is  said : 

tary  action 

class  of  mo 

as  are  usua 

and.  amonij; 

autlior  clas 

autlior   say 

human  cone 

rill,  Circ.  E' 

motive  of  ir; 

by  two  dift't 

and  tangibl( 

possess;  ami 

pected  to  ac 

2S5.    Thee 

tration  of  tl 

case  the  apj; 

evidence  of 

"  to  show  a 

material  linl 

the  opinion 

"Now  it 

premises,—  j 


STITZ  V.  STATE. 


49 


■\Vc  put  our  ruling  on  the  ground  that  the  evidence  was  com- 
petent as  tending  to  show  a  motive  to  commit  the  crime.  If  an 
accused  lias  a  jjolicy  of  insurance  on  his  property,  and  claims 
from  the  insurer  more  than  the  property  is  worth,  it  supplies 
some  evidence  of  a  wicked  motive.  If  a  man  should  claim, 
under  oatli,  ^1,000  for  projierty  of  no  greater  value  than  $100, 
tiiat  fact  would  supply  some  evidence  tending  to  establish  a 
motive  for  setting  fire  to  the  building  in  which  it  was  situated. 
It  would,  however,  be  a  mere  circumstance  to  be  considered  in 
connection  with  other  facts.  Of  itself,  it  would  not  be  of  great 
weight,  but  it  would  nevertheless  be  some  evidence  of  a  crim- 
inating ciiaracter. 

Tiie  law  recognizes  the  principle  that  men  are  Impelled  to 
commit  crimes  from  some  motive.  Thei'e  are,  indeed,  few 
motiveless  crimes,  and  among  the  motives  impelling  men  to 
crime  is  that  of  gain.  In  a  thoughtful  and  philosophical  treatise 
it  is  said :  "  As  there  must  ))rc-exist  a  motive  to  every  volun- 
tary action  of  a  rational  being,  it  is  proper  to  comprise  in  the 
class  of  moral  indications  such  ))avticulars  of  external  relation 
as  are  usually  observed  to  oi)erate  as  inducements  to  crime, 
iuul,  among  the  motives  that  influence  human  conduct,  this 
aiiUioi"  classes  that  of  gain.  "Wills,  Circ.  Ev.,  .'>'.).  Another 
author  says:  "In  looking  at  the  motives  which  instigate 
human  conduct,  we  ascend  to  the  very  origin  of  crime."  Eur- 
rill,  Circ.  Ev.,  281.  At  another  place  this  author  says:  "  The 
motive  of  gain,  in  the  stricter  sense  of  the  term,  may  be  excited 
by  two  different  classes  of  objects  —  Fa-sf,  by  something  visible 
and  tangible,  which  the  party  meditating  the  crime  desires  to 
possess;  and,  secondly,  by  some  substantial  benefit  which  is  ex- 
pected to  accrue  as  the  result  of  the  contemplated  act."  Id., 
2S5.  The  case  of  State  v.  Colin,  !)  Xev.,  179,  supplies  an  illus- 
tration of  the  practical  application  of  these  principles.  In  that 
case  the  appellant  was  charged  with  arson,  and  it  was  held  that 
evidence  of  over-large  insurance  upon  his  goods  was  competent 
"  to  show  a  possible  or  probable  motive,  such  motive  being  a 
material  link  in  the  chain  of  circumstances."  In  the  course  of 
the  opinion  in  that  case  it  was  said : 

"  Now  it  is  not  a  natural  thing  for  a  man  to  fire  his  own 
premises, —  presumptively  appellant  was  innocent.  What,  then, 
is  the  logical  and  natural  course  of  human  thought  at  such  a 
Vol.  V— 4 


so 


AMERICAN  CRIMINAL  REPORTS. 


juncture?  Is  it  not  to  inquire  what  motive,  if  any,  existed 
which  could  have  influenced  a  sane  person  to  do  such  an  act? 
Such  was  the  course  pursued  by  the  prosecution.  The  motive 
was  sought,  and  by  it  chiimcd  to  be  found  in  the  fact  of  an  un- 
due insurance,—  not  only  a  perfectly  proper  proceeding,  but 
indeed  the  only  one  open." 

Tiie  same  principle  is  declared  in  Cow.  v.  ILuhon,  97  Mass., 
5G.5,  and  in  Shepherd  v.  People,  19  N.  Y.,  537.  In  this  last  case 
Denio,  J.,  speaking  for  the  court,  said : 

"  The  prisoner's  house  had  been  burned,  and  he  was  charged, 
upon  circumstantial  evidence,  with  having  set  it  on  fire. 
Prima  faele  he  had  no  motive  for  the  act,  but  a  strong  pecun- 
iary one  against  it.  IJut  if  he  had  a  contract  of  indemnity,  and 
especially  if,  under  it,  he  might  probably  obtain  more  than  the 
value  of  the  property,  the  case  would  bo  quite  dilferent." 

Mr.  Bishop  says : 

"  Evidence  that  the  insurance  was  for  more  than  the  wortli 
of  the  building  is  pertinent;  also  that  the  defendant attemi)te(l 
to  procure  payment  of  what  was  thus  excessive."  2  Bish.  Crim. 
Proc,  §  50. 

These  cases  are  in  harmony  with  the  general  rule  which  that 
author  thus  states : 

"  Hence  proof  of  motive  is  never  indispensable  to  a  convic- 
tion; but  it  is  always  competent  against  the  defendant."  1 
Bish.  Crim.  Proc,  §1107;  Wills,  Circ.  Ev.,  41;  Goodwin  r. 
State,  90  Ind.,  550,  see  p.  5(50. 

While  it  is  com})ctcnt  to  prove  facts  tending  to  show  an  evil 
motive,  yet  such  facts  are  always  susceptible  of  ex[)lanation. 
Motive  is  but  a  circumstance,  and  it  is  always  ])roper  to  explain 
the  act  which  is  adduced  as  evidence  of  a  wicked  motive.  This 
is  true  of  the  present  case.  If  the  valuation  of  the  property  was 
made  by  mistake,  or  was  a  mere  honest  error  of  opinion,  the 
probatory  force  of  tlie  fact  tliat  there  was  a  claim  made  for  a 
value  greater  than  the  actual  one  would  be  materially  weak- 
ened, if  not  entirely  destroyed.  It  is  not  uncommon  for  men 
to  place  too  great  a  vahie  on  tlieir  own  projierty,  and  an  error 
in  doing  so  is  not  necessarily  a  criminating  circumstance.  Cit- 
izens', etc.,  Im.  Co.  V.  Short,  02  Ind.,  310.  The  accused  was 
entitled  to  an  instruction  that  if  the  overvaluation  of  the 
property  was  the  result  of  an  error  of  judgment,  or  of  a  mistake 


-1 


of  fact,  it  w 
criminal  int 
tlie  iristructi 
Tlu;  court 
"  While  e; 
bcyorul  a  r 
reasonable  < 
warrant  an 
This  instri 
viction  of  a 
reasonable  d 
this  point  is 
reverses  this 
doubt,  unles! 
iic(|uittal." 
inilcss  all  coi 
(bet  should  i 
tion  to  the  r 
In<l.,  140;  C 
tially  dilfere 
80  Ind.,  235. 
members  of  1 
strongly  pre 
yield  in  ir  tli< 
Vt  all  t'\cni 
immediate  m 
»nii«'ss  all 
ff'iidant's  gu 
vhere  the 
cased,  there 
mitted  in  gi 
other  cases, 
satisfactory, 
the  instruct 

There  are 
but  we  do  n 
nient  must 

Judgmen 
order  for  th 


1 


STITZ  r.  STATE. 


Wi 


of  fact,  it  was  not  necessarily  evidence  of  a  wicked  motive  or 
crinurial  intent.  Our  opinion  is  that  the  court  erred  in  refusing 
the  instru(!tion  asked  by  tlio  ajipellant  upon  this  point. 
Tlu;  court  ^ave  to  the  jury  this  instruction: 
"  While  each  juror  must  bo  satisfied  of  the  defendant's  guilt 
beyond  a  I'casonable  doubt,  to  authorize  a  conviction,  such 
rcasotiable  doubt,  unless  entertained  by  all  the  jurors,  does  not 
warrant  an  acquittal." 

This  instruction  is  palpably  erroneous.    There  can  bo  no  con- 
viction of  a  crime  unless  all  the  jurors  are  satisfied,  beyond  a 
reasonable  doul)t,  of  the  guilt  of  the  accused.     The  law  upon 
this  point  is  firndy  settled.     The  instruction  before  us  in  effect 
a       reverses  this  ride,  for  it  informs  the  jury  that  "  such  reasonable 
(loiiht,  uidess  entertained  by  all  the  jurors,  does  not  warrant  an 
a(!(|uittal."     This  must  have  induced  the  jurors  to  think  that 
unless  all  concurred  in  entertaining  a  reasonable  doubt  the  ver- 
dict should  be  jigainst  the  defendant.     This  is  in  direct  opposi- 
tion to  the  rule  declared  by  our  decisions.     Casfle  v.  State,  75 
Ind.,  140;  Cletnv.  S'f/ifr,  42  Ind.,  4-JO.    This  instruction  is  essen- 
tially dill'eient  from  the  one  passed  upon  in  FuMinow  v.  State, 
I       8!)  Ind.,  S;};").     A  reasonable  doubt  entertained  by  some  of  the 
i       mcnd)ers  of  the  jury  may  not  compel  an  acquittal,  but  it  may  so 
strongly  jn'evail,  and  Jimong  so  numy,  as  to  warrant  others  in 
f       yicldi""- their  opinitms,  and  joining  in  a  verdict  of  acquittal. 
vt  all  iW'iiis,  an  instruction  which  indicates,  as  the  one  imder 
iiinnediatc  mention  does,  that  individual  jurors  should  not  acquit 
unless  ail     It'  nuMubei's  of  the  jury  entertain  doubts  of  the  de- 
f<  idant's  guilt,  is  erroneous.     It  may  possibly  be  that,  in  a  case 
■here  the  evidence  satisfactorily  shows  the  guilt  of  the  ac 
I       cuscd,  there  should  be  no  reversal  for  such  an  error  as  that  com- 
':       initted  in  giving  the   ustruction;  but,  however  this  may  be  in 
i       other  cases,  in  such  a  case  as  this,  where  the  evidence  is  far  from 
t       satisfactory,  we  cai.not  disregard  the  error  committed  in  giving 
S       the  instruction  under  i-xamination. 

}  There  arc  other  i   structions  given  which  we  deem  erroneous ; 

\       but  we  do  not  think  it  necessary  to  discuss  them,  for  the  judg- 
ment must  be  reversed  for  the  errors  pointed  out. 
jj  Judgment  reversed,   with   instructions  to  issue  the  proper 

3      order  for  the  return  of  the  appellant. 


,  ';;■ 


I 


I 


AMERICAN  CRIMINAL  REPORTS. 


I-: 


State  v.  Melick. 

(65  Iowa,  614.) 
Arson:  Evidence— Horse-shoe  tracks. 

1,  Arson  —  CiRCUMSTAXTiAL  evidence.— Evidence  that  horse-shoe  tracks 
led  from  the  place  where  a  crime  was  committed  to  the  b.arn  of  the 
person  accused  of  committing  such  crime,  and  that  tlie  tracks  corre- 
sponded to  the  shoes  on  a  liorse  owned  by  the  accused,  will  not  of  itself 
warrant  a  conviction. 

3.  Evidence  in  rebuttal. —  In  such  case,  the  accused  ought  to  be  allowed 
to  prove  that  the  horse  could  not  wear  a  shoe  of  the  kind  and  dimen- 
sions given  as  the  size  of  the  track  measured  by  the  prosecuting  wit- 
ness. 

Appeal  from  Buchanan  District  Court, 

The  defendant  was  inchcted  and  tried  for  the  crime  of  set- 
ting fire  to  and  burning  fifteen  staclcs  of  liay,  the  property  of 
one  Small. 

I/.  W.  Ifo/)i>a?i  and  If.  Boies,  for  appellant. 
Smith  IlcPherson,  attorney-general,  for  the  state. 

RoTHKocK,  J.  The  hay  was  burned  in  the  night-time.  The 
fire  was  discovered  while  the  stacks  were  burning,  and  Small, 
the  owner  of  the  hay,  and  others  collected  at  the  fire,  and 
were  on  the  ground  at  dayliglit  next  morning.  They  dis- 
covered certain  horse  tracks  leading  up  near  where  the  liay  had 
been  stacked,  and  then  away  from  the  ])lace.  The  defendant 
and  Small  owned  and  resided  on  adjoining  farms.  Small,  and 
some  three  or  four  others,  followed  these  horse  tracks  up  near 
to  the  defendant's  barn.  They  measured  the  tracks  with  a 
stick,  and  went  to  defendant's  barn,  and  with  defendant's  con- 
sent they  measured  the  feet  of  a  horse  belonging  to  defendant, 
and  which  was  in  the  barn.  Small  claimed  that  the  tracks 
found  leading  to  and  away  from  his  stack-yard  were  made  by 
the  defendant's  said  honse.  lie  made  this  claim  in  the  presence 
of  the  defendant.  This  alleged  similarity  between  the  tracks 
and  the  shoes  on  the  horse  was  the  principal  fact  relied  upon 
to  convict  the  defendant  of  the  crime.  It  is  true,  there  had 
been  some  ill-feeling  between  the  parties  j)revious  to  that.  Thi" 
defendant  claimed  that  he  had  an  account  against  Small,  which 


he  assigned  J 
Small  sot  up 
7\  witness  to 
iiro  the  dofc 
not  the  end  ( 

We  have  c 
occurred  on 
iutorviows  be 
dol'oiuliint  oil 
the  siioos  on 
the  .shoos  agi 
sontcd  that  i 
the  dofondan 
roiiiovod.  an< 
so  that  ho  CO 
the  tracks  W( 
clear  througl 
wore  made  b 
jury  would  b 
wore  lirod  by 
if  tiicro  wore 
defendant  as 
the  place  wli 
stance  again 
tracks  amoui 
ant's  barn  st( 
lu'ctiug  the  ( 
the  dofondan 

We  ha\o  s 
against  the  < 
by  him  after 
guilt.  His 
socoiul  time 
oi  an  innocoi 
to  a  desire  to 
We  are  sati." 
rant  a  vordic 

2.  In  view 
dol'oiulant  sh 
in  ((uostion  e 


'I 


STATE  V.  MELICK. 


53 


1 
1 


he  assigned  to  another  ])erson,  "svho  commenced  suit  upon  it. 
Small  set  up  a  counter-claim,  and  recovered  judgment  for  costs. 
A  witness  testified  that  some  two  or  three  weeks  before  the 
iirc  the  defendant,  in  speaking  of  the  law-suit,  said:  "This  is 
not  the  end  of  it." 

We  have  carefully  examined  the  testimony  relating  to  what 
octiu'i'ed  on  the  day  after  the  iirc.  There  were  two  or  tiiree 
iutei'views  between  Small  and  Ids  friends  on  one  side,  and  tlie 
(let'eiulant  on  the  other  side.  After  the  lirst  measurement  of 
tlio  slioes  on  the  horse.  Small  and  his  friends  desired  to  measure 
the  shoes  again,  and  defendant  objected,  but  afterwards  con- 
sented that  it  migiit  be  done.  A  day  or  two  after  tlie  tire, 
tiio  defeiulant  took  the  horse  to  a  blacksmith  and  had  the  shoes 
i('iii(»ved.  and  nailed  together  and  nuirked  by  the  blacksmith 
s(»  that  he  could  identify  them.  The  (juestion  as  to  whether 
tiie  tracks  were  made  by  the  defendant's  horse  was  disputed 
clear  through  the  trial.  Hut,  suj)i)ose  it  be  conceded  that  tiiey 
were  made  l)y  said  horse,  what  does  it  establish?  AVe  think  a 
jury  wouUl  be  warranted  in  limling  therefrom  that  the  stacks 
wore  lired  by  some  one  who  rode  the  hoi-se  to  the  stacks.  And 
if  there  were  any  other  evidence  in  the  case  ])ointing  to  tho 
(leiendant  as  the  guilty  party,  the  fact  that  his  horse  was  at 
the  place  where  the  lire  occurred  would  be  a  strong  circum- 
stance against  him.  J'ut  without  such  other  evidence,  tho 
tracks  amount  to  no  nu)re  than  mere  suspicion.  The  defeml- 
ant's  barn  stood  open,  and  unless  there  is  other  evidence  con- 
necting the  defendant  with  tho  crime,  liow  can  it  be  said  that 
the  defendant  was  the  criminal? 

We  ha\e  scorched  the  record  in  vain  for  any  other  evidence 
against  the  <lefendant.  Every  act  done  and  declaration  made 
hy  him  after  the  lire  is  as  consistent  with  innocence  as  it  is  with 
guilt.  His  refusal  to  Jiave  the  mare's  shoes  measured  tiio 
second  time  was  just  as  fairly  attributable  to  the  indignation 
oi  an  innocent  man  at  being  accused  of  a  high  crime  as  it  was 
to  a  desire  to  conceal  the  evidence  of  a  crime  he  had  committed. 
We  are  satisfied  that  there  was  not  suHicient  evidence  to  war- 
rant a  verdict  of  guilty. 

2.  In  view  of  a  n(nv  trial,  wo  deem  it  proper  to  say  that  tho 
defendant  shoidd  have  been  ])ermitted  to  show  that  tho  horse 
in  (piestion  could  not  wear  a  shoe  of  the  dimensions  given  as 


tT 


54 


AMERICAN  CRIMINAL  REPORTS. 


fl 

the  size  of  the  track  measured  by  Lewis  Small.  The  declara- 
tion of  the  defendant,  made  after  the  fire,  that  he  would  "  make 
Small  wish  he  had  left  him  alone  before  he  left  him,"  ought 
not  to  have  been  introduced  in  evidence.  Whatever  of  hostil- 
ity to  Small  was  evinced  thereby  might  quite  as  well  bo  at- 
tributed to  the  accusation  made  against  defendant  for  burning 
the  liay  as  to  any  previous  malice  or  ill-will,  and  the  cross- 
examination  of  the  witness  Blank  should  have  been  confined 
to  the  subject  of  conversation  to  which  he  testified  in  his  ex- 
amination in  chief. 

Jteverscd. 


State  v.  Montgomeet. 

(65  Iowa.  483.) 

Assault  and  battery  committed  upon  a  tkespassee. 

1.  Counsel  op  prosecuting  witness. —  In  a  j)rosecution  by  information 

for  an  assault  ami  battery,  counsel  may  he  employed  to  assist  in  the 
trial  of  the  case  by  tiie  prosecuting  witness. 

2.  Assault  with  revolver  —  Repetition  of  tiireatkninq  acts.  — In 

the  case  of  a  prosecution  for  iissault  in  i)oiuting  a  cocked  revolvtir  nt 
prosecuting  witness  ami  driving  him  from  a  certain  road  which  de- 
fendant h.ad  prohibited  him  from  traveling,  it  is  not  error  to  reci'ivc 
evidence  showing  that  he  pointed  the  revolver  at  witness  more  tlian 
once,  when  all  sucii  acts  point  to  but  one  transaction,  and  tend  to  show 
the  defendant's  aiiimns. 
8.  Trespasser.—  An  assault  witii  a  revolver  cannot  be  justified  by  proof 
that  the  person  .assaulted  w.^s  a  trespasser,  and  tiiat  the  purixwe  of  the 
assault  was  to  remove  him  from  the  premises. 

Appeal  from  Marion  District  Court. 

C.  If.  Ri>hl)bv})i  and  Ayres  Bros.,  for  a])pellant. 
Smith  McPhemjH,  attorney -gonei'ul,  for  the  state. 

Beck,  C.  J.  Wo  shall  proceed  to  disjiose  of  tlie  objections 
urged  by  defendant  to  the  judgment  of  the  court  l)elow  in 
the  order  of  their  di.scussion  by  counsel. 

1.  An  attorney  Avho  had  prosecuted  the  case  before  tiio  jus 
tice  of  the  peace  was,  upon  the  request  and  consent  of  the  dis- 
trict attorney,  permitted  to  assist  in  the  prosecution  in  the 


district  com 

the  court  be 

We  have  h( 

the  district 

parties  to  a; 

2G0.    This 

the  reason  1 

decisions  of 

will  be  obsc 

enco  in  th( 

consideratic 

The  ])erson 

ment  that  t 

forty  years, 

tioned.     A 

abrogated 

ant  tiiink  tl 

rule  of  t^ta 

counsel  wai 

long-prevai 

l)eon  permi 

charge  of 

as  tlie  pro; 

interested  : 

not  to  be  i 

sideration, 

correctness 

being  liab 

the  riglit  1 

'2.  The  i 

])ointing  ii 

cocked  rev 

cuting  wit 

certain  rcj; 

and  was  c^ 

premises. 

prosecutin 

the  revoh 

claims  thi 

therefore 


STATE  V.  MONTGOMERY.  ftf 

district  court.  This  was  made  the  ground  of  an  exception  in 
the  court  below,  and  the  objection  is  renewed  in  this  court. 
"We  have  held  that,  with  the  consent  of  the  district  attorney, 
the  district  court  may  permit  attorneys  eniploynd  by  pi-ivate 
parties  to  assist  in  prosecutions.  State  v.  Fltzfjevald,  49  Iowa, 
2G0.  This  decision  is  questioned  by  defendant's  counsel,  for 
the  reason  that  they  think  it  was  not  well  considered,  and  the 
decisions  of  other  states  are  not  referred  to  in  the  opinion.  It 
will  be  observed  that  the  decision  is  based  upon  the  long  exist- 
ence in  the  state  of  the  practice  to  which  counsel  object  —  a 
consideration  of  more  weight  than  decisions  of  other  courts. 
The  personal  observation  of  some  of  us  warrants  the  state- 
ment that  the  practice  has  prevailed  in  this  state  for  more  than 
forty  years,  and  none  of  us  have,  until  recently,  heard  it  ques- 
tioned. A  ])ructice  so  long  and  firmly  established  can  only  be 
abrogated  by  legislative  enactment.  But  counsel  for  defend- 
ant think  that  this  case  should  not  be  regarded  as  within  the 
rule  of  State  v.  Fit(jzenil<l^  for  the  reason  that  the  assisting 
counsel  was  employed  by  the  prosecuting  witness.  Under  the 
k)ng-])revailing  practice  the  prosecuting  witness  has  always 
been  permitted  to  employ  an  attorney  to  assist  the  ollicers  in 
charge  of  the  prosecution.  Counsel  for  defendant  think  tliat, 
as  tlie  ])i'osecuting  witness  may  bo  held  liable  fur  costs,  he  is 
interested  in  the  result  of  the  jH'osecution,  and  therefore  ought 
not  to  be  permitted  t(j  employ  counsel  in  the  case.  This  con- 
sideration, we  think,  gives  strong  su])port  to  the  justice  and 
correctness  of  the  ])raetice.  Surely  the  prosecuting  witness, 
being  liable  for  costs  if  the  prosecution  fails,  ought  to  have 
the  right  to  employ  counsel  for  his  own  ])rotection. 

2.  The  assault  of  which  defendant  was  charged  consisted  in 
jiointing  in  a  threatening  manner  at  the  iiroseeuting  witness  a 
cocked  revolver.  The  evidence  tends  to  ])rove  that  the  ]n'ose- 
cuting  witness  was  forbidden  by  defendant  to  travel  upon  a 
certain  road  through  a  farm  owned  or  controlled  by  defendant, 
and  was  compelled  by  the  display  of  the  revolver  to  leave  the 
premises.  In  accomplishing  his  j)ui'pose  of  preventing  the 
prosecuting  witness  passing  over  tlie  farm,  defendant  pointed 
the  revolver  more  than  once  at  the  witness.  Counsel  now 
claims  that  the  evidence  shows  more  than  one  offense,  and  was 
therefore  erroneously  admitted,  so  far  as  it  tended  to  prove 


50 


AMERICAN  CRIMINAL  REPORTS. 


more  than  one  act.  But  all  the  evidence,  in  fact,  p.-^vtains  to 
but  one  transaction  —  two  continuous  acts  done  for  the  pur- 
pose of  ilriving  the  -witness  away  from  the  premises.  The 
separate  acts  of  i)ointing-  the  weapon  constituted  but  one  as- 
sault. While  one  act  alone  constituted  an  olFense,  all  were 
properly  shown,  to  establish  the  anivms  of  the  defendant. 
This  view  disposes  of  several  objections  made  to  the  admission 
of  evidence  and  instructions  given. 

3.  Upon  the  cross-examination  of  the  prosecuting  witness  he 
stated,  in  response  to  a  question  by  defendant,  that  there  had 
been  a  difficulty  between  them.  This  evidence  was  competent 
to  show  the  feeling  of  the  witness  towards  the  def(?ndant. 
But  the  prosecuting  witness  was  then  asked  if  he  had  not 
struck  the  defendant,  and  an  objection  to  tlie  question  was 
rio'htlv  sustained.  If  the  fact  had  been  shown,  it  would  have 
been  no  justilication  for  the  assaidt,  and  would  have  led  to 
inquiry  into  collateral  matters  not  pertinent  to  the  c'asi\ 

4.  The  defendant  testified  that  ho  had  no  intention  of  using 
the  revolver  to  assail  the  prosecuting  witness  unless  it  became 
necessary.  He  was  then  asked  what  intention  he  had  in  tak- 
insr  the  revolver  with  him,  other  than  to  defend  himself.  Jle 
was  not  permitted  to  answer  the  question.  A\^e  think  the  court 
ruled  rightly  in  rejecting  the  evidence.  AVhatever  may  have 
been  defendant's  intentions  in  arming  himself,  if  they  did 
not  relate  to  the  assault  they  were  irrelevant.  If  the  defend- 
ant had  the  weapon  in  his  hand  for  a  ]n'oper  and  innocent  pur- 
pose, this  would  not  excuse  him  in  pointing  it  in  a  threatening 
manner  at  the  prosecuting  witness. 

5.  An  objection  to  evidenco  admitted  by  the  district  couit. 
raised  by  the  assignment  of  errors,  is  not  argued  by  counsel, 
who  content  thenis(>lves  with  simply  staling  it.  It  is  possible 
that  we  may  not  he  re(]uired  to  ])ass  upon  it,  but  are  authorized 
to  regard  it  as  abandoned.  But,  uj)on  considei-ation  of  the 
objection,  if  we  may  be  recpiired  to  consider  it  without  argu- 
ment, Ave  find  that  it  is  not  well  taken. 

0.  Several  questions  Avere  asked  a  witneps  (ITorsman)  by  de- 
fendant, to  which  answers  w«'re  not  permitted.  Tlie  rulings 
are  now  complained  of  by  counsel.  As  it  does  not  appear 
what  evidence  was  expected  to  be  elicited,  we  cannot  determin(> 
that  the  rulings  were  wrong.     YoUm  v.  D'tehl.,  G2  Iowa,  075. 


7.  Nunic 
structions. 
and  interpi 
further  not 
assault  wit 
the  person 
assault  was 
instruction! 
weapon  cai 
that  an  att 
lawful.     Ii 
tlie  doctrii 

8.  Tlie  c 
of  defenda 
or  honestl_y 
prosecutinj 
upon  the  ti 
rect.    The 

9.  It  is  i 
l)y  the  evi 
not  be  dist 


CLINE  V.  STATE. 


SI 


7.  ^N'umerons  objections  arc  made  to  rulings  upon  the  in- 
structions. ]\rany  of  them  arc  based  upon  incorrect  criticisms 
and  interpretations  of  the  instructions  given,  and  need  not  bo 
further  noticed.  The  instructions  announce  the  rule  that  an 
assault  with  a  revolver  cannot  be  justitied  on  the  ground  that 
the  person  assaulted  was  a  trespasser,  and  the  purpose  of  the 
assault  was  to  remove  the  tresj)asser  from  the  pi-emiscs.  The 
instructions  are  correct.  It  will  not  be  claimed  that  a  deadly 
weapon  can  be  used  in  resisting  a  mere  trcspassei'.  It  follows 
that  an  attempt  to  use  such  a  weapon  upon  a  trespasser  is  un- 
lawful. Instructions  asked  by  defendant  were  in  conflict  with 
tlie  doctrine  avo  have  announced,  and  were  proi)erly  refused. 

8.  The  court  coi'rectly  directed  the  jury  upon  the  question 
of  defendant's  right  of  self-defense  in  case  he  was  assaulted, 
or  honestly  believed  that  he  was  about  to  be  assaulted,  by  the 
prosecuting  witness,  wiili  a  deadly  weapon,  which  was  claimed 
upon  the  ti'ial.  Other  rules  of  the  instructions  given  are  cor- 
rect.   They  demand  no  further  attention. 

9.  It  is  insisted  that  the  verdict  is  not  sufficiently  supported 
hy  the  evidence.  ^Ve  think  differently.  The  judgment  can- 
not be  disturbed  on  this  ground. 

Affirined. 


Cltne  v.  State. 

(43  Ohio  St.,  332.) 

Assault  with  intknt  to  kill:  Instructions  —  Intoxication, 


1.  Instruction  assuming  kxistence  op  disputed  facts.— Wliere  a  fact 

iimti'rial  to  the  issiu',  coiiwining  tlio  existence  of  which  there  is  con- 
fUct  in  the  evidence,  is  lussuiiiecl  by  the  court  in  the  cliargo  to  the  jury 
to  be  fully  established,  tlie  province  of  the  jury  is  invaded,  and  preju- 
dicial I'rror  is  siiown. 

2.  Assault  avitii  intent  to  wound  ou  kill  —  Intoxication.—  Intoxi- 

cation is  no  defense  to  a  prosecution  for  crime;  but,  in  some  cases, 
evidence  of  intoxication  is  admissible  to  show  that  no  crime  has  been 
coininitted,  or  to  show  the  deforce  or  grade  of  a  crime ;  and,  in  a  prose- 
cution for  maliciously  shootiiiK  with  intent  to  wound,  evidence  that 
the  defendant  was  so  nmch  intoxicated  that  he  could  not  form  or  have 
such  intent  is  admissible. 


I! 


^  ;: 


58 


AMERICAN  CRIMINAL  REPORTS. 


3  MANSLA-uaHTEB-lNSTBDCTiON.-  In  a  prosecution  for  maliciously  shoot- 
ing with  intent  to  wound  or  kiU,  it  is  en-or  to  charge  that  the  defend- 
ant should  be  found  guilty  of  such  felony,  if  he  might  have  been 
properly  convicted  of  manslaughter  had  death  resulted  from  the  shoot- 
ing. 
Error  to  the  Court  of  Common  Pleas  of  Athens  County. 

E.  TompMns,  for  plaintiff  in  error. 

J.  Lawrence,  attorney-^^eneral,  and  D.  L.  Sleej>er,  prosecuting 
attorney,  for  the  state. 

Okey,  J.  Cline  was  tried  in  the  court  of  common  pleas  of 
Athens  county,  at  the  February  term,  1885,  for  maliciously 
shooting  Kinkead;  the  indictment  charging  in  the  lirst  count 
an  intent  to  kill,  and  in  the  second  count  an  intent  to  wound. 
The  verdict  was  ''  guilty "  upon  the  second  count,  and  "  not 
guilty  "  upon  the  first,  and  the  prisoner  was  sentenced  to  the 
penitentiary.  This  is  a  petition  in  error  to  reverse  the  judg- 
ment. The  Revised  Statutes  define  the  crime  and  proscribe  the 
punishment,  and  also  provide  that,  upon  such  an  indictment, 
there  may  be  a  conviction  for  an  assault.  Sections  <;Sl>o,  «;S2.'>, 
7316;  and  see  Barher  v.  State,  39  Ohio  St.,  000;  Jlltchell  v. 
State,  42  Ohio  St.,  383. 

1.  On  the  trial  it  was  matenal.  and  indeed  essential,  to  a 
conviction  for  felony  to  show  that  tlie  prisoner  was  actuated 
by  malice  in  shooting  Kinkead.  Pi-evious  threats  of  tlie  pris- 
oner that  he  would  kill  Kinkead  afforded  not  only  comi)etcnt 
but  potent  evidence  for  such  purpose.  Evidence  of  sucli  threats 
was  offered,  but,  on  the  other  hand,  testimony  was  given  that 
no  such  threats  had  been  made.  It  Avas,  therefore,  for  the 
jury  to  determine  whether  such  threats  had  been  made.  The 
court,  however,  assumed  the  province  of  the  jury  l^y  saying 
that  "  the  jury  shoula  also  consider  the  threats  made  by  the 
defendant."    This  was  as  well  prejudicial  as  ei-roneous. 

2.  Evidence  was  offered  showing  that  the  prisoner  was  in- 
toxicated at  the  time  of  the  shooting.  The  court  charged 
that "  if  the  jury  should  find  that  the  defendant  was  intoxicated 
to  such  an  extent  as  to  deprive  him  of  his  reason,  so  as  to  render 
him  incapable  of  reasoning  or  of  exercising  his  reasoning  facul- 
ties, the  jury  will  find  the  defendant  not  guilty  of  intent  to 
kill,  as  charged  in  the  first  count  of  the  indictment.    If  the 


jury  shou 
extent  as 
pable  of 
consider 
the  secon( 

In  orde 
the  secon( 
shot  Kinli 
V.  State), 
cation  mi 
charged  i 
reference 
such  disti 
is  whetlic 
fondant 
extent  tli 
or  wounc 

Where 
lawful  in 
the  conui 
to  aggrai 


CLINE  V.  STATE. 


59 


jury  should  find  that  tho  defendant  was  intoxicated  to  such  an 
extent  as  to  deprive  him  of  his  reason,  and  render  him  inca- 
pable of  forming  an  intent,  the  jury  may  proceed  further  and 
consUler  whether  or  not  the  defendant  is  guilty  as  charged  in 
the  second  count." 

In  order  to  find  the  prisoner  guilty  of  the  felony  charged  in 
the  second  count,  it  was  necessary  to  prove  that  the  prisoner 
shot  Kinkead  with  the  specific  intent  of  wounding  him  {Barber 
V.  State),  and  no  reason  can  be  given  why  evidence  of  intoxi- 
cation might  not  be  considered  with  reference  to  the  felony 
charged  in  the  second  count,  if  it  could  be  considered  with 
reference  to  the  felony  charged  in  tho  first  count.  In  making 
such  distinction  tho  court  erred.  The  real  question,  therefore, 
is  wliotlicr,  in  such  a  case,  it  is  competent  to  show  that  the  de- 
fomhint  was,  at  the  time  of  the  shooting,  intoxicated  to  such  an 
extent  that  he  could  not  form  or  have  a  purpose  or  intent  to  kill 
or  wound. 

AVhere  a  person,  having  the  desire  to  do  to  another  an  un- 
lawful injury,  drinks  intoxicating  liquors  to  nerve  himself  to 
the  commission  of  tho  crime,  intoxication  is  held,  and  properly, 
to  aggravate  the  offense ;  but  at  i)rescnt  the  rule  that  intoxica- 
tion aggravates  crime  is  confined  to  cases  of  that  class.  The 
rule  is  well  settled  that  intoxication  is  not  a  justification  or  an 
excuse  for  crime.  To  hold  otherwise  would  be  dangerous  to 
and  subversive  of  public  welfare.  But  in  many  cases  evidence 
of  intoxication  is  admissible  with  a  view  to  the  question 
whether  a  crime  has  been  committed ;  or  where  a  crime,  con- 
sisting of  degrees,  has  been  committed,  such  evidence  may  be 
important  in  determining  the  degree.  Thus  an  intoxicated 
person  may  have  a  counterfeit  bank-bill  in  his  possession  for  a 
lawful  purpose,  and,  intending  to  pay  a  genuine  bill  to  another 
person,  may,  by  reason  of  such  intoxication,  hand  him  the 
counterfeit  bill.  As  intent,  in  such  case,  is  of  the  essence  of 
the  offense,  it  is  possible  that  in  proving  intoxication  you  go 
far  to  prove  that  no  crime  was  committed.  Plgman  v.  State, 
14  Ohio,  555.  So,  where  the  offense  charged  embraces  de- 
liberation, premeditation,  some  specific  intent,  or  the  like,  evi- 
dence of  intoxication  may  be  important,  and  it  has  frequently 
been  admitted.  Id.;  Nicholas  v.  State-,  8  Ohio  St.,  435;  Davis 
V.  State,  25  Ohio  St.,  309;  Z>/tlev.  State,  31  Ohio  St.,  196.  Tho 


CO 


AMERICAN  CRIMINAL  REPORTS. 


leading  case  of  Phjman  v.  State  has  been  repeatedly  cited  with 
approval  (/'o^^/e  v.  Robinson,  2  Parker,  Cr.  ltei».,  !2u.j;  PiopU 
V.  Ilari'is,  29  Cal,  678;  L'olcts  v.  People,  19  Mich.,  iol ;  State  c. 
Welch,  21  Minn.,  22;  lIo2>t  v.  People,  104  U.  S.,  G31;  />}.  6'.,  4 
Am.  Cr.  R,  305;  State  v.  Johnwn,  4(»  Conn.,  130);  and  no  doubt 
the  law  ui)on  the  subject  is  correctly  stated  in  that  case,  and 
that  the  rule  as  there  expressed  is  humane  and  just;  but  there 
is  always  danger  that  undue  weight  will  be  attached  to  the  fact 
of  drunkenness,  where  it  is  shown  in  a  criminal  case,  and  courts 
and  juries  should  see  tluit  it  is  only  used  for  the  ])urpose  above 
stated,  and  not  as  a  cloak  or  justification  for  crime.  See,  also, 
U.  S.  V.  Drew,  5  Mason,  28;  .S'.  C,  1  Lead.  Crim.  Cas.  (2d  ed.), 
131,  note;  Regma  v.  Daois,  14  Cox,  Crim.  Cas.,  503;  S,  C,  28 
Moak,  Eng.  Eep.,  057,  note;  Lawson  on  Insanity,  533-708, — 
where  all  the  cases  are  collected  relating  to  the  admissibility 
and  effect,  in  criminal  cases,  of  proof  of  intoxication.  In  say- 
ing, as  the  court  virtually  said,  that  proof  of  intoxication  could 
not  be  considered  with  respect  to  the  felony  charged  in  the 
second  count  of  the  indictment,  there  was  prejudicial  error. 

3.  The  court  further  charged:  "If  the  jury  iind  from  the 
evidence  that  the  defendant  was  intoxicated,  as  hereinbefore 
set  forth,  and  they  should  also  find  that  the  defendant  shot 
Kinkead  in  such  manner  that  if  death  had  ensued  it  would 
have  been  manslaughter,  they  should  find  the  defendant  guilty.'' 
The  jury  would  understand  from  such  a  charge,  and  no  doubt 
the  judge  desired  to  be  understood  as  saying,  that  if  death  had 
resulted,  and  the  crime  would  have  been  manslaughter,  the  de- 
fendant might,  death  not  resulting,  be  found  guilty  of  the 
felony  charged  in  one  of  these  counts.  But  to  convict  of  man- 
slaughter it  is  not  necessary  to  show  either  malice  or  an  intent 
to  kill  or  wound.  It  is  sufficient  to  show  an  unlawful  killing. 
To  convict  of  the  felony  charged  in  this  indictment,  it  is  noc;- 
essary  to  show  malice,  and  an  intent  to  kill  or  wound.  Tht; 
charge  was  manifestly  erroneous  and  plainly  prejudicial. 

Judgment  ?'eve/',sc<I. 


ATTEMn 

1.  Attempt 

to  lnval 
tlion  an 
ami  <"u 
(•ejit»'il 

2.  Intent  t 

tliat  <li' 
from  tl 
(U'lVnd: 

./.  /:  J> 
K  ./.  -^ 

sistant  att 

W.  All 
ch.21(».^^ 
alit'gCo  thi 
uiglit-timc 
intent  the 
being  foui 
away,  ant 
and  there 
otTense." 
Cash.,  52( 

It  is  a 
offense  "  i 
tem])t  to 
intent  to 
tense  of 
attoinpte* 
to  commi 
the  defei 
vented, 
ruled. 

There 
broke  an 


^TW?| 


COMMONWEALTH  v.  SHEDD.  ^% 

Commonwealth  v.  Siiedd. 

(140  Mass.,  451.) 

Attempt  to  commit  bvrolauy:  Indictment  —  Intent  —  Evidence, 

1.  Attempt  to  tommit  burglary  — Indictment.— An  indictment  which 

iilIi'K<''<  tliat  the  defendant,  "  in  tlie  nigiit-time.  feloniously  did  attempt 
to  t)it'ak  and  enter,  with  intent  the  goods  and  cliattcls  in  said  building- 
then  and  there  being  found  then  and  tiiere  feloniously  to  ster.l,  take 
and  carry  away,  and  in  sucli  attempt "  did  certain  acts,  but  was  inter- 
cepted and  prevented  in  the  execution  of  the  offense,  is  sufficient. 

2,  Intent  to  stkal  may  dk  inferred. — Wlierethe  evidence  tends  to  prove 

that  defendant  In'olce  and  opened  certain  windows,  the  jury  may  infer 
from  the  circumstances,  and  from  tlie  conduct  and  declarations  of  the 
ilefendaiiit,  tliat  tlie  purpose  wtis  to  steal  from  the  building. 

./.  F.  J)(i)'<\  for  the  defendant. 

K  •/.  S/u'i'iiini),  Jittoniey-^^eneral,  and  77".  JV.  Shcpard,  as- 
sistant attorney-general,  for  the  ccjinnionwealth. 

W.  Allkx,  J.  The  defendant  was  indicted,  on  Pub.  Stats., 
ell.  210,  <}  8,  for  an  attempt  to  commit  bur^^'lary.  The  indictment 
alie;L;'c..  that  the  defendant,  a  dwelling-house  described,  "  in  the 
ni;ilit-time,  feloniously  did  attempt  to  break  and  enter,  with 
intent  the  goods  and  chattels  in  said  building  then  and  there 
being  found  then  and  there  feloniously  to  steal,  take  and  carry 
away,  and  in  such  attempt"  did  certain  acts;  but  "was  then 
and  there  intercepted  and  prevented  in  the  execution  of  said 
otTense."  The  indictment  is  sutticient.  Com.  v.  Flynn,  3 
Cash.,  520;  Com.  v.  MeLamjhUn,  105  Mass.,  400. 

It  is  argued  that  it  is  uncertain  whether  the  words  "  said 
offense  "  refer  to  the  burglary  or  to  the  larceny,  or  to  the  at- 
tempt to  commit  burglary.  But  there  is  no  uncertainty.  The 
intent  to  commit  larceny  is  alleged  only  as  a  part  of  the  of- 
fense of  burglary,  Avhich  the  defendant  is  alleged  to  have 
attempted  to  commit ;  and  the  burglary,  and  not  the  attempt 
to  commit  it,  is  certainly  the  offense  in  the  execution  of  which 
the  defendant  is  alleged  to  have  been  intercepted  and  pre- 
vented. The  motion  to  quash  the  indictment  was  rightly  over- 
ruled. 

There  was  evidence  tending  to  prove  that  the  defendant 
broke  ami  opened  the  windows,  which  was  the  act  alleged  to 


w; 


•  <i 


■'1 


62 


AMERICAN  CRIMINAL  REPORTS. 


have  been  done  in  the  attempt  to  commit  the  burglary;  and 
the  jury  might  well  have  inferred,  from  the  circumstances  at- 
tending the  act,  and  from  the  conduct  and  declaration  of  the 
defendant,  that  the  act  was  done  for  the  purpose  of  stealing 
from  the  building.  The  court  could  not  properly  have  given 
the  instruction  prayed  for,  that  on  the  evidence  the  jury  would 
not  be  warranted  in  finding  a  verdict  of  guilty. 

£xccjjiions  overruled. 


State  v.  Anoelo. 

(18  Nev.,  423.) 

Attempt  to  escape  from  prison:  Indictment— Jurors  — Venire  — Oath. 

1.  Overt  attempt  to  escape  from  prison.— An  iiulictmont  whidi  shows 
that  the  prisoner,  while  lawfully  confined  in  the  state  prison  under  a 
judgment  of  a  competent  court  for  the  crime  of  hurglary,  did  make 
an  overt  attempt  to  escape  therefrom;  that  he  "did  unlawfully,  forci- 
bly and  felf>niously  break  out  of  the  coll  in  said  i)rison  in  which  he 
was  confined,  and  out  of  the  building  in  which  said  cell  was  and  is," — 
contains  a  suflicient  statement  of  facts  to  show  the  commission  of  the 
crime  charged. 

S.  Certified  copy  of  judgment.—  It  is  not  necessary  to  state  in  such  in- 
dictment that  a  certified  copy  of  the  judgment  against  the  prisoner 
for  the  crime  for  which  he  was  secured  had  been  handed  to  the  warden 
of  the  prison. 

8.  Court  to  decide  as  to  the  necessity  op  venire.— The  question  of 
the  necessity  of  summoning  an  open  venire  when  the  regular  panel  of 
jurors  is  exhausted  rests  in  the  discretion  of  the  judge,  and  is  not  left 
to  the  judgment  of  the  prisoner. 

4.  Statutory  form  op  oath  should  be  followed.- The  form  of  the 
juror's  oath,  as  prescribed  by  statute,  should  be  followed  as  far  as  pos- 
sible, but  the  substance  of  it  is  indispensable. 

Appeal  from  the  District  Court  of  the  Second  Judicial  Dis- 
trict, Ormsby  County. 

IV.  Soderherg,  for  appellant. 

W.  II.  Davenport,  attorney-general,  for  respondent. 

Hawley,  C.  J.  Appellant,  having  been  convicted  of  an  overt 
attempt  to  escape  from  the  state  prison,  seeks  the  intervention 
of  this  court  for  a  new  trial. 


1.  He  clii 
have  been 
not  allege 
tliori/ing  li 
the  ground 
tlie  crime  ( 
attempt  to 
well  taken. 
law  of  this 
that  apjiel 
un>ler  a  ju 
lary,  did  m 
"  did  unlav 
in  said  pri^ 
ing  in  whi( 
ment  of  fa 
1  Comp.  I.i 
ment  that 
for  burglai 
The  statut 
It  docs  i'0( 
shall  bo  " 
prisonmon 
in  the  indi 
burglary  t 
and  made 
Nov.,  34(». 
ment  to  b( 
to  receive 
1  Com]).  I 
Tiuit  pc 
as  an  ovei 
been  omit 
indictmcn 
charged. 
Nev.,  ITS 
alleged  c( 
appellant 
of  "guilt 


STATE  V.  ANGELO. 


68 


1.  lie  claims  that  his  demurrer  to  the  indictment  should 
liave  been  siistiiinod  upon  the  ground  that  the  indictment  did 
not  alloj-o  the  existence  of  any  warrant  or  commitment  au- 
tliori/.i  11^"  his  incarceration  in  the  state  prison;  and  also  upon 
the  ground  thi  t  the  facts  alleged  in  the  indictment  constitute 
tlic  crime  of  an  escajjc  from  tiie  prison,  instead  of  an  overt 
attempt  to  escape  tlierefrom.  Neither  of  tliese  positions  is 
well  tak(Mi.  The  indictment,  tested  by  the  requirements  of  the 
law  of  tliis  state  (I  Comp.  Laws,  18r)8),  is  sutlicient.  It  shows 
that  a|)poihint,  while  lawfully  confined  in  the  state  prison 
under  a  judgment  of  a  competent  court  for  the  crime  of  burg- 
lary, did  make  an  overt  attempt  to  escape  therefrom;  that  he 
"did  unlawfully,  forcibly  and  feloniously  break  out  of  the  cell 
in  said  prison  in  which  he  was  confined,  and  out  of  the  build- 
ine:  in  which  said  cell  was  and  is.''  This  is  a  sutlicient  state- 
ment  of  facts  to  show  the  commission  of  the  crime  charged. 
1  Comp.  Laws,  24*10.  It  was  unnecessary  to  aver  in  the  indict- 
ment that  a  certilied  copy  of  the  judgment  against  appellant 
for  burglary  had  been  delivered  to  the  warden  of  the  prison. 
The  statute  does  not  make  that  an  essential  fact  to  be  proved. 
It  docs  rocpiirc  that  the  ])risoner  making  the  attempt  to  escape 
shall  be  "lawfully  confined,  .  .  .  under  judgment  of  im- 
prisonment, in  said  prison;"'  and  these  facts  are  fully  set  forth 
in  the  indictment."  It  was  the  judgment  against  appellant  for 
burglary  that  authorized  his  imprisonment  in  the  state  prison, 
and  made  his  confinement  therein  lawful.  Kf  parte  Smith,  2 
Xev.,  J54<>.  The  statute  requires  a  certified  copy  of  this  judg- 
ment to  be  given  to  the  warden  as  evidence  of  his  authority 
to  receive  the  prisoner  and  to  keep  him  confined  in  the  prison. 
1  Comp.  Laws,  2070. 

That  portion  of  the  indictment  which  designates  the  crime 
as  an  overt  attem]>t  to  escape  is  merely  formal  and  might  have 
boon  omitted.  It  is  the  recital  of  the  facts  in  the  body  of  the 
indictment  that  constitutes  the  crime  of  which  a])pellant  is 
charged.  State  v.  Andersoti,  3  Nev.,  25G;  State  v.  Johnson,  9 
Xev.,  ITS;  State  v.  Ri<j(f,  10  Nev.,  288.  Hence,  if  the  facts 
alleged  constituted  the  crime  of  an  escape  from  the  prison, 
aj^pellant  could  have  been  tried  for  that  offense,  and  the  verdict 
of  "  guilty,  as  charged  in  the  indictment,"  would  warrant  the 


64 


AMERICAN  CRIMINAL  REPORTS. 


sentence  imposed.  The  statute  makes  no  dilTorenco  in  the 
grade  of  these  olTenses.  It  provides  the  same  pimislimout  for 
each.  But  we  are  of  opinion  that  the  formal  j)art  of  the  in- 
dictment correctly  designated  the  offense  as  an  overt  attemjit 
to  escape.  The  breaking  out  of  the  cell  in  which  the  prisoner 
Avas  confined,  and  out  of  the  building  in  which  the  cell  was 
situate,  did  not  necessarily  constitute  an  escape  from  the  state 
prison,  for  if  he  was  captured  within  the  prison  walls  he  did 
not  succeed  in  his  attempt  to  escape  from  the  prison. 

2.  Appellant  challenged  the  panel  of  trial  jurors  on  the 
ground  that  the  jurors  were  not  ordered,  drawn  or  summoned 
according  to  law,  in  this :  that  tliey  "  were  summoned  under 
an  open  venire,  and  without  any  necessity  existing  for  not 
drawing  or  sumnioning  the  jury  herein  in  the  regular  way,'' 
and  claims  that  the  court  erred  in  not  allowing  him  to  pnjvc 
the  trutn  of  his  objections.  The  statute  provides  for  the  issu- 
ance of  an  open  venire  in  certain  cases,  and  leaves  the  question 
as  to  the  mode  of  selecting  the  jurors,  by  open  venire  or  other- 
wise, to  the  discretion  of  the  court.  St.  1881,  23.  The  order 
of  the  court  recites  the  statutory  fact  '"  tliat  the  regular  panel 
of  trial  jurors  .  .  .  has  been  exliausted,"  which  justified 
the  court  in  issuing  an  open  renire,  and  it  also  recites  the  fact 
that  it  appeared  to  the  court  "  that  it  \vas  necessary  to  summon 
additional  jurors."  The  offer  as  made  was  too  general.  It 
was  not  to  prove  any  specific  fact,  as,  for  instance,  that  the 
regular  panel  was  not  exhausted,  or  to  give  the  number  of  the 
jurors  in  the  regular  panel,  if  any.  The  law  leaves  the  question 
of  necessity  to  the  discretion  of  the  court,  instead  of  the  judg- 
ment of  the  prisoner.  There  is  nothing  in  the  recoi'd  whicii 
tends  in  the  slightest  degree  to  show  that  the  court  abused  its 
discretion.    The  offer,  as  made,  was  properly  overruled. 

3.  The  objection  that  the  jurors  were  not  lawfully  sworn  is 
without  any  substantial  merit.  The  oath  administered  was  as 
follows : 

"You,  and  each  of  you,  do  solemnly  swear  that  you  will 
well  and  truly  try  this  came,  and  a  true  verdict  render  accord- 
ing to  the  laio  ond  the  evidence.    So  help  you  God." 

The  principle  of  the  common  law  is  that  oaths  are  to  be 
administered  to  all  persons  according  to  their  opinions  and  as 


it  most  affc 
this  state  d 
administerc 
and  this  foi 
and  is  subsi 
mon  law. 

"  You  do 
well  and  tr 
Ji.,  the  deft 
dence." 

Tlie  only 
this  case,  v 
cause"  inst 
Charles  '^n 
able,  and  it 
guage  of  t 
think  that  i 
oath,  or  is  \ 
appellant  t( 
by  statute, 
oath  canno 
Ilarr'niian, 
444;  JiiDcc 
Bray  v.  St< 
V.  Slate,  41) 

The  oath 
in  substanc 
tweon  the  s 
From  an  e^ 
seen  that  tl 
quiring  th( 
State,  32  T( 
insufficient 

"The  jui 
a  true  verd 
though  not 
tial  complii 

4.  Appol 
ceivod  at  tl 
for  the  alle 
Vol. 


STATE  V.  ANUELO. 


m 


it  most  affects  their  consciences.  The  criminal  practice  act  of 
this  state  does  not  provide  any  particular  form  of  oath  to  be 
administered,  except  in  justices'  courts  (1  (,'oui]).  J.aws,  2229), 
and  this  form  is  the  one  generally  used  in  the  district  courts, 
and  is  substantially  the  oath  as  usually  administered  at  com- 
mon law.    It  is  as  follows : 

"  You  do  swear  (or  alHrm,  as  the  case  may  be)  tl'.at  you  will 
well  and  truly  try  this  issue  hetiocen  the  state  nf  Nevada  and  A. 
£,,  the  defendant.,  and  a  true  verdict  (jive  according  to  the  evi- 
dence." 

Tlie  only  objection  to  the  fcjrin  of  the  oath  administered  in 
this  case,  wortliy  of  notice,  is  in  the  use  of  the  words  "  this 
cause''  instead  of  ''tliis  issue  between  the  state  of  Nevada  and 
Charles  '^ngelo,  the  defendant."  The  latter  words  are  prefer- 
able, and  it  woidd  always  be  best  not  to  depart  from  the  la"  • 
guage  of  the  statute  in  this  respect,  AV^e  do  not,  however, 
think  that  the  change,  as  made,  vitiates  the  solemnity  of  the 
oath,  or  is  such  a  departure  from  the  regular  form  as  to  entitle 
apiu'llant  to  a  new  trial.  The  form  of  the  oath,  as  prescribed 
by  statute,  should  always  be  followed.  The  substance  of  the 
oath  cannot  be  dispensed  with.  !^t(ite  v.  Rollins,  22  X.  11.,  .')28; 
IIuri'liiKiii  i\  Stitfc,  2  (i.  Greene,  2s,');  jr<i/ter  v.  State,  3  Minn., 
4Jr-i;  Jj(caro//t  v.  iState,  41  Tex.,  lt>l;  Sutton  v.  State,  id.,  515; 
Brai/  V.  State,  id.,  5(>1;  Monjan  e.  Statr,  42  Tex.,  224;  EdiJoards 
V.  State,  40  Ala.,  3;{G;  State  v.  Owen,  72  X.  C,  Oil. 

The  oath  to  well  and  tridy  try  "this  cause"  was  the  same 
in  substance  as  an  oath  to  well  and  truly  tiy  "this  issue  be- 
tween the  state  of  Nevada  and  Charles  Angelo,  the  tlefendant." 
From  an  examination  of  the  Texas  cases  above  cited  it  will  be 
seen  that  the  courts  of  that  state  have  been  very  strict  in  re- 
quiring the  substance  of  the  oath  to  be  given.  In  J^aith  v. 
State,  32  Tex.,  374,  the  precise  \wint  here  presented  was  held 
insufficient  to  justify  a  reversal.     The  court  said: 

"The  jury  were  'sworn  well  and  truly  to  try  the  cause,  and 
a  true  verdict  render  according  to  law  and  evidence.'  This, 
though  not  in  the  ])recise  language  of  the  statute,  is  a  substan- 
tial compliance." 

4.  Appellant  offered  to  prove  "  the  punishment  he  had  re- 
ceived at  the  hands  of  the  prison  authorities  after  his  recapture, 
for  iho  alleged  offense."  This  was  wholly  immaterial.  It  had 
Vol.  V  — 5 


II 


/I 


AMERICAN  CRIMINAL  REPORTS. 


nothing  Avliatever  to  do  with  the  question  of  the  guilt  or  inno- 
cence of  the  defendant,  and  was  very  properly  refused. 

We  have  specifically  noticed  all  the  objections  relied  upon  by 
appellant  which  are  presented  by  the  record. 

The  judgment  of  the  district  court  is  affirmed. 


State  t.  Hart. 

(33  Kan.,  218.) 

Attempt  TO  rape:  Plea  of  former  jeopanhj— Waiver  — Information — 

Neio  trial. 

1.  Wheue  defendant  moves  for  and  procures  new  trial  on  account  of 

DEFECTIVE  INFORMATION.—  Where  an  accused  person  is  convicted,  and 
he  moves  ^for  a  new  trial  upon  various  grounds,  among  wliich  are 
these:  "(6)  The  information  does  not  state  sufficient  facts  to  constitute 
an  offense ;  (7)  the  information  and  the  evidence  do  not  show  or  prove 
any  offense  under  the  laws  of  Kansas; "  and  the  court  grants  the  new 
trial  as  praj-ed  for  in  the  defendant's  motion ;  and  the  court  also  finds 
that  the  information  "  did  not  state  facts  sufficient  to  constitute  the 
offense  of  which  the  defendant  is  found  guilty,"  and  orders  that  a 
new  information  be  filed  by  the  county  attorney,  which  is  done,  the 
defendant,  by  moving  for  and  obtaining  such  new  trial,  baa  waived 
his  right  to  plead  former  jeopard}-. 

2.  Effect  OP  GRANTING  NEW  TRIAL. — When  a  new  trialis  granted  on  the 

motion  of  the  accused,  the  granting  thereof  places  him  in  the  same 
position  as  if  no  trial  had  been  had. 
8.  Entry  of  nolle  pros.— After  new  trial  has  been  granted  on  motion 
of  the  accused,  the  attorney  for  the  state,  with  the  consi'ut  of  the 
court,  may  enter  a  nolle  prosequi  without  prejudice  to  a  future  prose- 
cution. 

4.  Motion  in  arrest  of  judgment.- The  same  result  would  follow  if, 

instead  of  a  motion  for  a  new  trial  being  made  and  granted  and  a  nolle 
prosequi  entered,  a  motion  in  ai'rest  of  judgment  were  made  upon  the 
ground  that  the  information  did  not  state  a  jtublic  offense. 

5.  Attempt  to  rape — Information.— A  criminal  information  under  sec- 

tions 283  and  31  of  the  crimes  and  punishments  act,  charging  the 
defendant  with  an  attempt  carnally  and  unlawfully  to  know  a  female 
child  under  the  age  of  ten  years,  may  be  sufficient,  although  the  word 
"rape"  may  not  be  used  in  the  information. 

6.  Words  defining  offense.— The  exact  words  used  in  a  criminal  stat- 

ute defining  a  public  offense  are  never  required  to  l)o  us^nl  in  a  crim- 
inal information  charging  sutii  offense,  but  any  eijuivalent  words,  or 
any  words  clearly  and  intelligibly  setting  forth  the  offense,  are  suffi- 
cient. 


7,  Verdict - 
where  tl 
tempting 
lawfully 
not  use  t 
that  the 
charged,' 
is  valid. 

Appeal  f  1 

/.  P.  Sn 

Austin,  of  ( 
Z.  J.  Cm 

Ya  r.KNTTN 

formation  c 
and  unlawl 
years.  The 
crimes  and 
and  senten 
appeals  to  t 

Tlio  princ 
as  follows: 

F'u'st,  the 
the  court  b 
former  jeo] 
spond  to  th 

We  shall 
afterwards. 

We  thinl, 
fully  overri 
ant  had  for: 
setting  fort 
tlie  present 
(lid  not  cha 
or  inchidinj 
at  all,  then 
rect.  I'ut, 
the  infornu 
same  otfen 
this  assum] 


STATE  V.  HART. 


67 


7,  Verdict  —  Atte^ipt  to  coMsni  rape. — In  a  criminal  prosecution, 
wliere  the  information  sufficiently  charges  the  defendant  with  at- 
tempting to  commit  the  offense  of  rape  by  seeking  carnally  and  un- 
lawfully to  know  a  female  child  under  the  age  of  ten  years,  but  does 
not  use  the  word  "rape"  in  charging  the  offense,  and  the  jury  find 
that  tlie  defendant  was  "guilty  of  an  attempt  to  commit  a  rape,  as 
charged,"  the  verdict  is  sufficiently  responsive  to  the  information,  and 
is  valid. 

Appeal  from  Cloud  District  Court. 

J.  P.  Smith,  attorney-general,  for  the  state.     Edwin  A. 

Austin,  of  counsel. 
L.  J.  Cmns,  for  appellant. 

Yaf.kxtine,  J.  This  was  a  criminal  prosocution  upon  an  in- 
formation charging  the  (lefonclant  with  an  attempt  to  carnally 
and  unlawfully  know  a  female  child  under  the  age  of  ten 
years.  The  prosecution  was  under  sections  283  and  31  of  the 
crimes  and  punishments  act.  The  defendant  was  convicted 
and  sentenced  to  the  penitentiary  for  one  year.  He  now 
iilt})oals  to  this  coiu't. 

Tlio  principal  points  made  hy  counsel  for  the  defendant  are 
as  follows: 

First,  tiie  information  does  not  charge  any  offense;  second^ 
the  court  l)elow  erred  in  overruling  the  defendant's  plea  of 
former  jeopardy;  third,  the  verdict  of  the  jury  does  not  re- 
spond to  the  cliargo  made  in  the  information. 

We  sliall  consider  the  second  point  first  and  the  other  two 
afterwards. 

"Wo  think  the  defendant's  plea  of  former  jeopardy  was  right- 
fully overruled.  It  appears  from  the  record  that  the  defend- 
ant had  formerly  been  tried  and  convicted  upon  an  information 
sotting  forth  a  ci  iminal  charge  similar  to  the  charge  nuule  in 
the  present  case.  Now,  if  the  infoi'mation  in  the  former  case 
(lid  not  charge  the  same  offense  as,  or  an  offense  included  in, 
or  inchiding,  the  present  offense,  or  did  not  charge  any  offense 
at  all,  then  of  course  the  ruling  of  the  court  below  was  cor- 
rect. T5ut,  for  the  puri)oses  of  this  case,  we  shall  assume  that 
the  information  in  the  former  case  /lid  cliargo  ])recisely  the 
same  olfense  as  was  charged  in  the  present  case;  and,  upon 
iliis  assumption,  was  the  ruling  of  the  court  below  erroneous? 


AMERICAN  CRIMINAL  REPORTS. 


We  think  not.  The  defendant  was  tried  and  convicted  upon 
the  former  char<;e.  and  after  his  conviction  he  moved  for  ;i 
new  trial,  Avhich  was  granted;  and  then  a  new  information 
was  filed,  upon  wliich  tlie  present  conviction  and  sentence  wero 
had.  The  i-ecord  of  the  proceedings  upon  the  lii'st  inforuui- 
tion,  after  setting  forth  all  the  proceedings  down  to  and  includ- 
iiK.'  the  verdict,  then  sets  forth  the  following,  among  other 

things : 

"  On  the  2d  day  of  May,  A.  D.  1  ^!S4,  the  said  defendant. 
Louis  Hart,  filed  his  motion  for  a  new  trial  and  to  vacate  and 
set  aside  the  said  verdict,  which  motion  is  in  the  words  and 
figures  following,  to  Avit : 

"  '  IN  THE   DISTRICT   COURT   OF   CI-OlI)   COUNTY,  KANSAS. 

«'77*^  State  of  Kavsn^  Plaintif,  v.  Lours  Hart,  Ihfendant. 

"  '  And  now  comes  the  defendant  and  moves  for  a  new  trial, 
for  the  reasons:  (1)  Tlie  verdict  is  contrary  to  the  evidence; 
(2)  the  verdict  is  contrary  to  the  law:  (3)  errors  of  law  occur- 
rino-  during  tlie  trial,  excepted  to  by  the  defendant  at  the  time; 
(4)  errors  in  acce])ting  evidence;  (5)  errors  in  rejecting  evi- 
dence; (6)  the  information  does  not  stat(^  suilicient  facts  to 
constitute  an  offense;  (_T)  tlie  information  and  tiie  evidence  do 
not  show  or  prove  any  offense  under  the  laws  of  Kansas. 

"  'L.  J.  CuANs.  Attorney  for  Defendant.' 

"That  thereupon,  and  cm  consideration  of  tiie  court,  the  said 
motion  of  the  said  defendant  for  a  new  trial  was  by  the  court 
sustained,  and  said  verdict  was  wholly  set  aside  and  a  new 
trial  granted  as  prayed  for  in  said  motion;  the  joiii'nal  entr\ 
of  said  jndgnient  and  jiroceedings  being  in  the  words  and 
figures  following,  to  wit." 

The  journal  entry  contains,  among  other  tilings,  the  forego- 
intr  motion  for  a  new  trial,  and  then  contains  th(^  f(jllowing: 

"And  the  court,  having  heard  tiie  motion,  and  being  fully 
advised  in  the  premises,  linds  that  the  information  (lied  herein 
di<l  not  state  facts  suilicient  to  constitute  tlie  offense  of  which 
the  defendant  is  found  guilty,  allowed  said  motion.  And  it  ap- 
pearing to  the  court  that  a  mistake  had  been  made  in  charging 
the  projier  offense,  ami  that  there  appears  to  be  good  cause  to 
detain  the  defendant  in  custody,  orders  the  county  attorney  to 
file  an  information  against  the  defendant  under  section  2S''. 


chapter  31, 
cision  of  tl 
new  trial  a 
state,  by  ' 
dnl' 

the  I'  upon 

It  will  b( 

for  a  new  t 

following : 

"  ((;)  The 

tute  an  off* 

show  or  pr 

The  com 

ant's  motio 

not  state  ft 

defendant 

tion  be  lil 

these  procc 

subsequent 

ini'ormatioi 

form  (Crin 

before  verc 

charging  tl 

charged  if 

^ut  the  coi 

o:^ense,  an 

and  testify 

ucvv  trial  ii 

criminal  ci 

cased  in  tli 

Code,  §  27- 

trial  has  b 

criminal  c 

the  court, 

futm-e  proi 

u])on  his  tl 

the  identic 

■y.  Rust,  ;]1 

instead  of 

and  a  iwlh 

ment  wcrt 


STATE  V.  HART. 


60 


chapter  31,  of  the  General  Statutes;  to  which  ruling  and  de- 
cision of  the  court,  in  sustaining  said  motion  and  granting  a 
new  trial  and  ordering  said  new  information  to  be  filed,  the 
state,  by  said  J.  W.  Sheaf  or,  county  attorney,  as  aforesaid, 
dill'  >  d  and  still  doth  except.    "Which  information  was 

tlici   u|)on  liled  in  obedience  to  said  order." 

It  will  be  seen  from  the  foregoing  that  the  defendant  moved 
for  a  new  trial  upon  various  grounds,  among  which  were  the 
following : 

"  (6)  The  information  does  not  state  sulBcient  facts  to  consti- 
tute an  offense ;  (7)  the  information  iind  the  evidence  do  not 
show  or  prove  any  offense  under  the  laws  of  Kansas." 

The  court  ;;'rnrited  the  new  trial  as  prayed  for  in  the  defend- 
ant's motion.  The  court  also  found  that  the  information  "did 
not  state  facts  sufficient  to  constitute  the  offense  of  whicli  the 
defendant  is  found  guilty,"  and  ordered  that  a  new  informa- 
tion be  liled  by  the  county  attorney,  which  was  done.  By 
these  proceedings  we  think  the  defendant  waived  his  right  to 
subsecpiently  plead  former  jeopardy.  In  this  state  a  criminal 
information  may  be  amended  in  a  nuitter  of  substance  or  in 
form  (Crim.  Code,  §  72),  and  "  when  it  appears,  at  any  time 
before  verdict  or  judgment,  that  a  mistake  has  been  nuide  in 
charging  the  proper  offense,  the  defendant  shall  not  be  dis- 
charged if  there  api)ears  good  cause  to  retain  him  in  custody; 
^ut  the  court  must  recognize  or  commit  him  to  answer  to  the 
oTense,  and,  if  necessary,  recognize  the  witnesses  to  appear 
and  testify."  Crim.  Code,  §  23U.  Also,  in  this  state,  wlien  a 
new  trial  is  granted  upon  the  motion  of  the  defendant  in  a 
criminal  case,  the  granting  of  the  same  places  the  party  ac- 
cused in  the  same  position  as  if  no  trial  had  been  had.  Crim. 
Code,  §  274;  State  v.  JlcCord,  8  Kan.,  232.  And  after  a  new 
trial  has  been  granted  on  the  motion  of  the  defendant  in  a 
criminal  case,  the  attorney  for  the  state,  with  the  consent  of 
the  court,  may  enter  a  nol/e  j>r(Mc>(jui  without  prejudice  to  a 
future  prosecution;  and  thereafter  the  defendant  may  be  put 
upon  his  trial  and  convicted  upon  a  new  information  charging 
the  idimtical  offense  set  forth  in  the  prior  information.  /State 
V.  L'usf,  'M  Kan.,  50'.).  And  the  same  result  would  follow  if, 
instead  of  a  motion  for  a  new  trial  being  made  and  granted, 
and  a  /io//>>  prnscipil  being  entered,  a  motion  in  arrest  of  judg- 
ment were  nuule  Ijy  the  defendant  upon  the  ground  that  the 


p 


if'  ; 


I.- 


70 


AMERICAN  CRIMINAL  REPORTS. 


information  did  not  state  a  public  offense,  and  tlie  motion  were 
granted.  Crim.  Code,  §§  277,  279.  Upon  the  defendant's  mo- 
tion for  a  new  trial  the  court  granted  just  what  lie  asked,  and, 
of  course,  he  waived  all  right  to  object  to  the  legal  conse- 
quences necessarily  resulting  from  such  grant,  lie  waived  his 
right  to  plead  former  jeopardy  or  to  object  to  being  again  tried 
for  the  same  ofTonse.  AVe  think  the  decision  of  the  court 
below  upon  the  defendant's  plea  of  former  jeojjardy  was  cor- 
rect, and  the  question  presented  by  such  ])lea,  and  by  the 
facts  admitted  and  proved,  was  a  (piostion  ])urely  of  law,  and 
the  court  had  a  right  to  decide  it  itself  and  to  instruct  the  jury 
how  to  find  upon  it,  and  was  not  bound  to  leave  the  question 
to  the  jury. 

We  think  the  second  information,  the  one  of  which  the  de- 
fendant now  complains  for  insulliciency,  stated  facts  sullicient 
not  only  to  constitute  an  offense,  but  to  constitute  the  particu- 
lar offense  of  which  the  defendant  was  found  guilty.     The  facts 
were  stated  in  considerable  detail,  and  were  amply  sufficient  to 
constitute  an  offense  under  sections  2S3  and  31  of  the  crimes 
and  punisliments  act.     The  only  gi-ound  upon   which  it  is 
claimed  that  the  information  is  not  sullicient  is  that  the  word 
"rape''  is  not  used  therein.     Xow,  we  do  not  think  that  it  is 
essential  that  such  a  word  should  be  used  in  the  information 
in  such  a  case;  but  all  that  is  necessary  is  that  the  information 
should  state  facts  sufficient  to  show  that  an  attempt  was  made 
to  commit  the  offense  of  rajie  by  an  attempt  to  carnally  and 
unlawfully  know  a  female  child  under  the  age  of  ten  years;  and 
the  information  amply  stated  all  these  things.    The  exact  words 
used  in  a  criminal  statute  dellniiig  a  public  oll'ense  are  never 
required  to  be  used  in  a  criminal  information  ch,ir<:in<T  sucli 
offense;  but  any  equivalent  words,  or  any  woi-ds  cleiii'ly  and 
intelligibly  setting  forth  the  offense,  are  all  that  are  required. 
St<it<^  V.  W/uf,^,  U  Kan.,  538.    The  verdict  of  the  jury  in  tlie 
l)resent  case  was  that  the  defendant  was  "guilty  of  an  attempt 
to  commit  a  rape,  as  charged."    We  think  the  verdict  was  ii 
fair  response  to  the  information;  that  there  was  no  material 
variance  between  them;  and  that  both  were  and  are  valid  an<l 
amply  sufficient. 

The  judgment  of  the  court  below  will  be  affirmed. 

HoBTON,  0.  J.,  concurring.    Johnston,  J.,  not  sitting. 


Wliere  a  g 
the  ow 
the  del 
the  mil 
fense  t 
books  c 

Appeal 

W.  P. . 

pellant. 

F.  A. 
attorney, 
state. 

Yai.knt 
for  arson 
luged  for 
such  eour 
plea  of  a 
1S82,  at 
Bliss  ct  A 
account  o 
time  afti 
setting  ill 
tried  and 
ccution  w 
ing  the  b 
former  a( 
on  the  g 
jio  bar  tc 
was  char 
lawfully, 
burn,  in  t 
county,  s 
F.  Wood, 
Wood;" 


-fTWpi! 


STATE  V.  COLGATE.  71 

State  v.  Colgate. 

(31  Kan.,  511.) 

Autrefois  acquit:  Arson. 

"Where  a  grist-mill  with  all  its  contents,  including  the  books  of  account  of 
the  owners  of  the  mill,  are  destroyetl  by  one  and  the  same  fire,  and 
the  defendant  is  prosecuted  criminally  for  setting  fire  to  and  burning 
fcho  mill,  and  on  such  charge  lie  is  acquitted,  his  acquittal  is  a  good  de- 
fense to  a  subsequent  prosecution  for  setting  fire  to  and  burning  the 
books  of  account. 

Appeal  from  Cowley  District  Court. 

W.  P.  Hackney,  J.  F.  McMallen  and  Henry  E.  Asp,  for  ap- 
pellant. 

W.  A.  Johnston,  attorney-general,  F.  S.  Jennings,  county 
attorney,  and  M.  G.  'Troup  and  Edwin  A.  Austin,  for  the 
state. 

Yai.kntink,  J.  The  defendant  was  convicted  and  sentenced 
for  arson  in  the  fourth  (higroe;  and  the  j)rincipal  ground  now 
urged  for  a  reversal  of  the  judgment  of  tlio  trial  court  is  that 
such  court  erred  in  sustaining  a  demurrer  to  the  delenchmt's 
plea  ol'  a  former  acquittal.  It  appears  that  on  August  13, 
18S2,  at  about  1  o'clock  in  the  morning,  the  grist-mill  of 
Bliss  ct  AVood  with  all  its  contents,  including  the  books  of 
account  of  the  owners  of  the  mill,  was  destroyed  by  lire.  Some- 
time  afterward  the  defemhmt  was  ju-osecuted  criminally  for 
sotting  lire  to  and  burning  the  mill;  and  on  this  charge  ho  was 
tried  and  acquittetl.  Ahout  live  months  afterward  a  new  pros- 
ecution was  instituted  against  him  for  setting  lire  to  and  burn- 
ing the  books  of  account.  To  this  charge  he  Jiled  a  [)lea  of 
former  accjuiltal,  which  i)lea  was  hekl  insuilicient  on  demurrer, 
on  the  ground  that  the  ac(piittal  in  the  first  prtjsecution  was 
no  bar  to  the  second  ])rosecution.  In  the  iirst  [U'osecution  it 
was  charged  that  tiio  defendant  William  11.  Colgate  "did  un- 
lawfully, wilfully,  maliciously  and  feloniously  set  fire  to  and 
biu'n,  in  the  night-tinu.^,  a  certain  grist-mill,  situated  iti  Cowley 
county,  state  of  Kansas,  and  belonging  to  C.  A.  IJliss  and  B. 
F.  "Wood,  partners  under  the  firm  name  and  si\  1(3  of  Bliss  & 
Wood;"  and. in  the  second  prosecution  it  was  charged  that  the 


n 


AMERICAN  CRIMINAL  REPORTS. 


defendant  '*  wilfully,  maliciously,  unlawfully  and  feloniously 
did  set  fire  to  and  burn  in  the  night-time,  of  the  goods,  wares, 
merchandise  and  chattels  of  C.  A.  Rliss  and  ?>.  F.  Wood,  part- 
ners doing  business  under  the  firm  name  and  style  of  Bliss  & 
Wood,  one  ledger,  one  journal,  one  cash-book,  one  weigh-book, 
one  grain  and  shipping  book,  and  one  petty -account  book,  the 
said  books  then  and  there  being  the  books  of  account  repre- 
sentinirand  scltinfi:  forth  the  business  then  and  for  a  longtime 
prior  thereto  transacted  and  done  by  the  said  firm  of  Bliss  & 
Wood  in  their  business  as  private  millers  and  shippers  of 
grain,  flour  and  mill-stuffs." 

The  defendant,  in  his  plea  of  a  former  acquittal,  set  forth 
and  alleged  that  the  grist-mill  and  all  its  contents,  including 
the  said  books  of  account,  were  destroyed  at  the  same  time, 
on  the  same  night,  bv  tiie  same  fire,  and  that  the  burning  of 
the  mill  and  the  burning  of  the  books  of  account  were  simply 
parts  and  portions  of  one  single  and  entire  transnotion.  And 
he  further  alleged  that  the;  ])rosecution.  in  its  attempt  to  prove 
the  defendant's  guilt  on  tlie  first  charge,  simply  introduced 
evidence  tending  to  prove  tliat  the  defendant  had  admitted 
that  he  set  fire  to  the  books  of  account  which  wore  then  in  the 
mill,  and  that  the  fire  spread  and  not  only  consumed  the  books, 
but  also  consumed  tlie  mill,  with  all  its  contents,  including  the 
books,  machinery,  grain,  flour  and  all  things  else  in  the  mill; 
and  the  prosecution  did  not  attempt  to  prove  the  defendant's 
guilt  in  any  other  manner.  And  upon  this  evidence  the  court 
instructed  the  jury  as  follows : 

"  It  is  not  necessary,  however,  in  every  case  that  the  accused 
should  have  entertained  a  specific  intent  to  burn  the  building, 
for  the  burning  of  which  he  is  charged  with  arson.  P'or  in 
stance,  if  a  book-keeper,  employed  by  a  firm  which  is  en- 
gaged in  operating  a  grist-mill,  for  the  purpose  of  destroying 
the  books  of  account  kept  by  him  for  his  emplovers,  should 
wilfully  set  fire  to  and  burn  such  books  of  account  in  the  mill, 
under  sufh  circumstances  as  that  the  firing  and  burnino-  of 
such  books  would  probably  result  in  the  i»urning  of  the  mill 
and  such  result  should  follow,  he  would  bo  guilty  of  arson  in 
so  burning  the  mill.  There  hiive  been  a  number  of  witnesses 
in  this  case  who  have  testified  to  hearing  the  defendant  admit 
that  he  set  fire  to  c.M-tain  books  in  the  mill,  alleged  in  tho  in- 


formation t 
tion  as  to  w 
circumstanc 
on  fire.'' 

As  the  d( 
decided  upc 
for  the  pur) 
considered  j 
(lid  the  cou 
must  be  iidi 
matious  do 
be  one  and 
and  the  sau 
in  the  othei 
not.  of  thei 
The  offense 
fire  to  and 
irroe,  while 
the  setting  f 
in  the  four 
apjiears  fro 
feiidant's  pi 
constituting; 
and  that  oi 
proving  tin 
(tffonses.     I 
couhl  not  bi 
the  offense 
ant  was  gu 
guilty  undo 
offenses  chii 
could  not  \) 
This  is  all  I 
defendant's 
claimed  tha 
fulact.  and 
of  account 
wanl  occur 
ful  act, 
Under  th 


4 


STATE  V.  COLGATE. 


78 


formation  to  have  been  burned,  each  witness  giving  his  recollec- 
tion as  to  what  the  defendant  said  in  that  regard,  and  as  to  the 
circumstances  and  manner  in  which  he  said  the  books  were  set 
on  fire." 

As  the  defendant's  plea  of  former  accjuittal  was  heard  and 
decided  upon  a  demurrer,  all  the  facts  alleged  tliorein  must, 
for  the  i)U)'pose  of  considering  tlie  ruling  of  the  demurrer,  be 
considered  as  true;  and,  considering  these  facts  in  tluit  manner, 
(lid  the  court  beh)w  err  in  sustaining  tlie  d( murrcr?  Now  it 
must  be  admitted  tiiat  tlie  offenses  set  forth  in  the  two  infor- 
mations do  not  appear,  from  the  informations  themselves,  to 
be  one  and  the  same  (►ffense,  or  to  be  parts  and  portions  of  one 
and  the  same  offense;  and  one  does  not  appear  to  be  included 
in  the  otluM";  and  the  facts  set  forth  in  one  information  would 
not.  of  themselves,  prove  the  offense  charged  in  the  other. 
The  offense  ciiarged  in  the  first  information  was  the  setting 
fire  to  and  burning  a  grist-mill,  wliich  is  arson  in  the  tliird  de- 
^Tce,  while  the  offense  charged  in  the  second  inforwiation  was 
the  setting  fire  to  and  burning  books  of  account,  which  is  arson 
in  the  fourth  degree.  But  it  is  clear  beyond  all  doubt,  as 
apjiears  from  the  real  facts  of  the  case  as  set  foi'th  in  the  de- 
fendant's ])lea  of  a  former  acquittal,  that  the  ]irinci|)al  facts 
constituting  the  two  alleged  offenses  are  identically  the  same, 
and  that  one  of  such  offenses  could  not  be  proved  without 
l>roving  the  principal  facts  constituting  the  other  of  such 
ofFenses,  Indeed,  the  offense  charged  in  the  first  information 
coidd  not  be  proved  without  ju'oving  all  the  facts  constituting 
the  ()frense  charged  in  the  second  infoi-mation.  If  the  defend- 
ant was  guilty  under  either  infonnation  he  must  have  been 
guilty  under  both;  and  if  ho  was  innocent  as  to  either  of  the 
offenses  charged  he  must  have  been  iniux-ent  as  to  both.  He 
could  not  possibly  be  guilty  of  one  aiul  innocent  of  the  other. 
This  is  all  upon  the  assumption  that  the  facts  set  forth  in  the 
defendant's  plea  of  a  former  ac(|uittal  ai'o  true.  It  is  not 
olainii'd  that  the  defendai\t  committed  more  than  one  wrong- 
ful act,  and  that  wroi\gful  aet  was  tlu^  setting  lire  to  the  books 
of  areount  in  the  pros(M'uting  witness'  mill;  and  all  that  after- 
wa^l  oecui'red  were  tlu^  u\eiH)  consetpuMtees  of  that  (Uie  wrong 
fulact. 

Under  the  statutes  of  Kansas  the  offense  of  arson  is  divided 


':t- 


AMERICAN  CRIMINAL  REPORTS. 


into  four  degrees.  The  generic  olTense  seems  to  be  the  wilful 
setting  lire  to  or  burning  property  to  the  injury  of  another. 
This  otfcnse  may,  in  some  one  or  more  of  its  different  degrees, 
be  committed  at  any  time  and  with  respect  to  any  tangible 
combustible  property,  except,  perhaps,  some  kinds  of  real  es- 
tate; and  the  olfense  may  be  aggravated,  mitigated  or  modi- 
lied  by  many  circumstances,  so  as  to  place  it  in  one  ov  another 
of  several  of  the  four  dilferent  degrees;  and  when  the  infor- 
mation or  indictment  charges  the  defendant  with  committing 
one  of  the  higher  degrees,  he  may  be  found  guilty  of  that  de- 
gree, or  of  any  inferior  degree,  or  of  any  olfense  included 
therein,  or  of  an  attempt  to  commit  the  offense.  Crim.  Code, 
§§  121,  122.  Of  course,  however,  the  defendant  can  be  found 
guilty  of  the  offense,  or  of  a  degree  thereof,  or  of  an  attempt 
to  conimit  the  same,  only  where  the  facts  of  such  offense,  or 
the  degree  of  which  he  is  found  guilty,  are  properly  set  forth. 
or  alleged,  in  the  information  or  indictment.  Also,  under  the 
statutes  of  Kansas,  if  the  defendant  in  a  criminal  action  bo 
convicted  or  ac(|iiitted  lie  cannot  again  be  prosecuted  for  thu 
same  offense,  or  for  any  lower  degree  thereof,  or  for  any 
offense  necessarily  incliid»3d  tlierein,  or  for  any  attempt  to 
commit  such  offense.  Crim.  Code,  §  233;  Act  relating  to 
crimes  and  ])iniisliments,  ji,^  20ii-2!>S.  And,  upon  general  prin- 
ciples, a  single  offense  cannot  lie  split  into  separate  parts,  and 
the  supposed  offender  be  prosecuted  for  each  of  such  separate 
parts,  although  eacli  part  may  of  itself  constitute  a  separate 
offense.  If  the  offender  Ije  prosecuted  for  one  pjirt,  that  ends 
the  prosecution  for  tiiat  offense ;  provided  such  part,  of  itself, 
constitutes  an  olfense  U)V  wliicli  a  convicticm  can  be  had.  And, 
generally,  we  would  think  that  the  conunission  of  a  singio 
wrongful  act  can  furnisli  the  subject-matter  or  the  foundatiMii 
of  only  one  criminal  prosecution. 

Thus,  in  Iowa,  it  has  been  held  that  where  a  person  uttered 
at  a  bank  several  tV)rged  checks  at  one  time  .''ntl  by  the  same 
act,  he  committed  l)nt  one  offense,  and  that  a  conviction  for 
uttering  one  of  the  checks  was  a  bar  to  a  conviction  upon 
the  others.  /Slate  v.  Eijtjkuld^  41  Iowa,  574 ;  S.  C,  20  Amer. 
Rep.,  G12. 

In  Connecticut  it  has  been  held  that  where  a  person  has  in 
his  possession,  at  the  same  time,  several  forged  bank-notes  of 


different  ba 
fraud  the  p 
several  ban 
conviction 
bank-notes 
of  any  otlic 
In  Xew 
been  acqui 
certain  ind( 
tried  for  ut 
People  v. 

In  Venn 
blow  WOUIK 
chai'ged  to 
indictment 
other.     Sid 
In  liuliai 
son  kills  t\\ 
only  one  ci 
them  lie  cai 
Clem  v.  Sh 
Stale,  22  A' 
the  same  ef 
In  Oliio  i 
erty  are  sti 
same,  the  1: 
belong  to  ( 
the  indict  II 
State  V.  //> 
In  Texat: 
and  place, 
bill  one  olT 
articles  is 
WIIko))  v. 
the  same  e 
35  Ainer. 
V.  Slatr,  1  t 
iams,  10  I 
211;  IVnji 
In  Kent 


4 


STATE  V.  COLGATE. 


%l^ 


different  banks,  with  the  intent  to  pass  them,  and  thereby  de- 
fraud tlie  person  Avho  might  take  them,  and  also  defraud  the 
several  banks,  such  facts  constitute  only  one  offense,  and  a 
conviction  founded  upon  the  possession  of  any  part  of  such 
bank-notes  will  bar  a  prosecution  founded  upon  the  possession 
of  iinv  oilier  part  of  the  same.     State  v.  Bcnhan),  T  (-''onn.,  414. 

In  Xeu  York  it  has  been  held  that  where  a  defendant  has 
been  accjuitted  of  the  offense  of  forging  and  couutci-feiting 
certain  indorsements  on  a  ])romissory  note,  he  cannot  be  again 
tried  fur  uttering  and  ])ublishing,  as  true,  such  indorsements. 
reopJe  V.  Alhiu  I  Tarker,  Vrwn.  R.  (N.  Y.),  445. 

In  A'oiinont  it  has  been  held  that  where  a  person  by  one 
blow  wounds  two  men,  a  conviction  for  the  assault  and  battery 
charged  to  have  been  committed  on  one  of  them  is  a  bar  to  an 
indictment  lor  the  assault  and  battery  as  committed  on  the 
other.    Sl,iti>  v.  JhniHm,  2  Tyler  (Vt.),  3S7. 

In  Indiana  and  Alabama  it  has  been  hehl  that  where  a  per- 
son kills  two  other  j)ersons  by  the  same  act,  he  has  committed 
only  one  crime,  and  if  convicted  for  the  homicide  of  one  of 
them  he  cannot  afterwards  be  ti'ied  for  the  homicide  of  the  other. 
Ckm  V.  Sf<if>;  42  Ind.,  420;  S.  C,  l-')  Amer.  Itej)..  a»il);  n^i  v. 
Slate,  22  Ala.,  !».  T'pon  the  same  subject,  and  sul)stantially  to 
the  s;ime  eU'ect,  see   W^o/tufck-  v.  Stdfe,  7  Cold.  (^TiMin.l.  40i). 

In  Oliio  it  has  l)een  held  that  where  several  articles  of  prop- 
erty iire  stolen  at  the  same  time,  the  transaction  being  the 
same,  the  larceny  of  the  whole  of  the  articles,  althougli  they 
belong  to  diU'erent  owners,  may  be  embraced  in  one  count  of 
the  indictment,  and  the  taking  thereof  charged  as  one  offense. 
Stater,  //nuie.ssei/,  23  Ohio  St.,  330;  S.  C,  13  Amer.  Kej).,  253. 

In  Texas  it  has  been  held  that  the  stealing,  at  the  same  time 
and  ])lace,  of  several  articles  belonging  to  diU'crent  persons,  is 
but  one  olTense,  and  a  conviction  for  the  larceny  of  one  of  such 
articles  is  a  bar  to  an  indictment  for  the  larceny  of  another. 
WlLwn  V.  State,  45  Tex.,  7('>;  S.  C,  23  Amer.  Llep.,  (1()2.  To 
the  same  elTeet,  sec  ILad-ivn  v.  State,  9  Tex.  Ct.  App.,  151 ;  A'.  C, 
35  AnuM-.  JJ(?j).,  7''>2;  Re.c  v.  Joae.\;  4  Car.  &  P.,  2L7;  Jaal'noii 
V.  Slat,;  14  Ind.,  327;  L.-'tofi  v.  State,  7  Mo.,  55;  State  v.  Will- 
iams, 10  Humph.  (Tenn.),  101;  FMer  v.  Com.,  1  Bush  (Ky.), 
211;  renj>tr  e.  MrdnaMin,  17  Wend.  (X.  Y.),  38(5. 

In  Kentucky  it  has  been  held  that,  although  the  setting  up 


:i  I 


w 


AMERICAN  CRIMINAL  REPORTS. 


of  a  gaming-table  is  one  offense,  and  the  keeping  of  a  gaming- 
table and  inducing  others  to  bet  thereon  is  another  offense,  yet 
that  when  they  are  both  committed  by  one  person,  aud  at  the 
same  time,  tliey  are  but  one  offense,  and  may  be  set  forth  in 
one  count,  and  will  authorize  but  one  punishment.  IlinUe  v. 
Com.,  4  Dana(Ky.),  518. 

In  Tennessee  it  has  been  held  that  a  conviction  for  running 
a  horee  race  is  a  good  defense  to  a  prosecution  for  l)ettiMg  on 
the  same  race.    FhWlerv.  State,  7  Humph.  (Tenn.).  5(i8. 

In  Georgia  it  has  been  held  tliat  a  conviction  for  l)urglary 
■will  bar  a  prosecution  for  robbery,  where  the  two  ))r<)socuti()ns 
•were  admitted  to  be  founded  upon  the  same  transnctiou.  And 
the  court  laid  down  the  broad  doctiine  that  one  prosecution 
will  bar  another  "  whenever  tlie  i)roof  shows  the  second  case 
to  be  the  same  transaction  witli  the  first."'  Eohcrts  e.  Stute,  14 
Ga.,  8.  And  in  the  same  state  it  was  held  that  a  conviction 
for  burglary  will  "  bar  a  ])rosecution  for  I'obbery  if  the  cii'cuin- 
stances  of  the  robbery  were  put  in  proof  in  order  to  make  out 
the  case  for  which  the  prisonei-  was  tried  and  convicted  on  tlie 
first  indictment,  because  in  such  case  the  robbery  constituted 
apart  of  the  same  transaction  for  wjiich  the  prisoner  was  first 
tried."     Gopenhaven.  v.  State,  15  Ga.,  204. 

In  North  Carolina  it  has  been  held  that  a  conviction  for  lar- 
ceny, upon  an  indictment  for  burghiry  and  larceny,  will  bar 
another  prosecution  for  roljl)ery,  wIum'o  the  robl)ery  nnd  the  lar- 
ceny were  for  the  felonious  taking  of  the  same  g(jods.  State 
V.  Lewis,  2  Hawks  (X.  C),  5)8. 

In  Xew  York  it  has  been  held  that  an  indictment  charging 
as  a  single  act  the  burning  of  a  number  of  designated  dwelling- 
houses  charges  but  one  olfense.  Woodfortl  r.  /\'oj//i\  02  N.  V.. 
lit;  .v.  6'.,  20  Anu>r.  Hep.,  404.  Substantially  to  the  same 
effect,  see  Com.  v.  Sijnlre.  42  ^fass.  (1  Mete),  258. 

In  New  Jersey  it  has  been  hehl  that  where  a  person  has  been 
convicted  of  arson  he  cannot  afterwards  be  tried  on  an  indict- 
ment for  the  murder  of  a  person  whose  death  was  alleged  to 
have  been  caused  by  the  arson.  State  v.  Cooper,  1  Green,  Law 
(N.  J.),  ;{01 ;  S.  C,  25  Auier.  1  )ec.,  400. 

In  almost  every  public  offense,  if  not  in  every  one,  several 
separate  and  distinct  facts  may  enter  in  to  constitute  the  of- 
fense.    These  facts  may  exist  contemporaneously  with  the 


wrongful  ac 
subsecjuentl} 
quences  of  t 
a  single  larc< 
touiporaneoi 
iu  murder,  t 
not  exist,  fo 
the  injiu-ed 
regaril  to  ar 
tlien  spread 
for  many 
guilty,  and 
wliicli  is  bu 
wrongfully 
ai-son  as  to 
other  thing 
probable  coi 
Crim.  Law, 
ing  cases  no 
Com.  V.  Wa< 
(N.  Y.),  239. 
set  lire  to  a 
fire  to  a  ba 
he  set  fire  h 
aud  burned 
As  before 
respect  to 
l)urned(^('oi 
ted  with  r( 
estate,    lit 
of  account 
with  n.'s[)ec 
the  mill  an 
aud  all  th( 
aud  consuii 
for  burning 
hooks  of  a 
tions  for  et 
by  that  on 
wrongful  i 


I 


STATE  V.  COLGATE. 


7T 


•1 


wrongful  act  or  acts  of  the  offender,  or  tliey  may  take  place 
subsequently  and  often,  in  succession,  as  succeeding  conse- 
quences of  the  wrongful  act  or  acts.  Where  a  person  commits 
a  single  larceny  by  stealing  several  articles,  the  facts  are  all  con- 
temporaneous; but  where  a  ])erson  eommits  an  act  that  results 
iu  murder,  the  murder  may  not  be  completed,  or,  indeed,  may 
not  exist,  for  days  or  moutlis  or  even  a  year  aftei-wards,  when 
tlie  injured  ])orson  dies.  This  is  also  true,  to  some  extent,  with 
regard  to  arson.  The  lire  may  be  set  to  one  article,  and  iiuiy 
tlien  spread  fi'om  article  to  article,  not  reaching  all  the  articles 
for  many  hours  afterwards,  and  yet  the  defendant  may  be 
guilty,  and  generally  is  guilty,  for  the  burning  of  every  article 
which  is  burned  in  consecjuence  of  the  lire  which  he  at  first 
wrongfully  kindles.  In  other  words,  a  person  who  commits 
ai-son  as  to  one  thing  is  genei-ally  guilty  of  arson  as  to  every 
other  thing  ^\  hich  takes  lire  and  burns,  as  the  natural  and 
probable  consequence  of  the  defendant's  wrongful  act.  1  I'ish. 
Crim.  Law,  §  !32!>,  and  cases  there  cited.  See,  also,  the  follow- 
ing cases  not  cited  by  Uishop:  lu.r  o.  Cooper,  5  Car.  &  P.,^'"5;>5; 
Com.  V.  Wai/e,  o4  ]V[ass.,  .31)5;  J/i'niie.s'.sr//  r.  Peoph\  iii  How.  Pr. 
(N.  Y.),  230.  In  the  lirst  of  these  three  cases  the  defendant 
set  fire  to  a  stack  and  burned  the  barn;  in  the  second  he  set 
fire  to  a  barn  and  burned  a  dwelling-house;  and  in  the  third 
lie  set  fire  to  his  own  store  to  defraud  an  insurance  company, 
and  burned  a  dwelling-house. 

As  before  stated,  arson  in  this  state  may  be  committed  with 
respect  to  every  kind  of  j)ersonal  pro})erty  which  may  be 
burned  ((.'onip.  Laws  1879,  ch.  31,  ,^  59),  and  it  may  be  commit- 
ted with  resi)ect  to  almost  every  kind  of  combustible  real 
estate.  Hence  if  the  defendant  did  in  fact  sot  fire  to  the  books 
of  account  and  burn  the  same,  he  was  guilty  of  arson,  not  only 
with  respect  to  the  books  of  account  but  also  with  respect  to 
the  mill  and  all  the  machineiy.  Hour,  tables,  chairs,  desks,  safe 
and  all  the  other  innumerable  articles  contained  in  the  mill 
and  consumed  by  that  burning;  and  if  ho  may  be  prosecuted 
for  burning  the  mill  and  then  be  ]n*osecuted  for  burning  the 
books  of  account,  he  may  be  prosecuted  by  separate  prosecu- 
tions for  each  of  the  innumerable  articles  that  wei'o  destroyed 
by  that  one  single  lire  —  a  lire  that  was  caused  by  one  single, 
wrongful  act ;  and  if  two  prosecutions  may  be  founded  upon 


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23  WIST  MAIN  STRICT 

WnSTIR,N.Y.  MSM 

(716)172.4503 


78 


AMERICAN  CRIMINAL  REPORTS. 


one  single  wrongful  act  — the  act  of  setting  fire  to  the  books 
of  account— why  may  not  a  hundred  or  a  thousand?  The 
proper  limit  for  separate  prosecutions  in  such  cases  would  secni 
to  be  either  the  number  of  articles  burned  or  the  nunibor  of 
criminal  acts  committed.  It  is  difficult  to  think  of  any  other 
limitations.  Mr.  Bishop  in  his  Avork  on  Criminal  Law,  iu 
speaking  of  that  provision  of  the  various  constitutions  which 
says  that  no  person  shall  be  twice  put  in  jeopardy  for  the  same 
offense,  says  that  "  to  give  our  constitutional  provision  the 
force  evidently  meant,  and  to  render  it  effectual,  'the  same 
offense'  must  be  interpreted  as  equivalent  to  the  same  criminal 
act."  1  Bish.  Crim.  Law,  §  1000.  If  this  be  true  then  only 
one  criminal  prosecution  can  be  founded  on  one  criminal  act. 
Of  course  the  prosecutor  may  associate  the  criminal  act  with 
all  its  consequences,  and  then  carve  therefrom  the  highest 
crime  that  can  be  carved  from  such  act  and  its  consequences, 
and  ^hen  prosecute  the  Avrong-doer  for  such  crime.  If  he 
chooses,  however,  he  may  carve  out  a  smaller  degree  of  crime, 
and  prosecute  for  that  only.  But  he  should  be  allowed  to 
carve  but  once.  In  the  present  case  the  prosecutor  probably 
might  have  stated  the  wrongful  act  of  the  defendant  in  setting 
fire  to  the  books  of  account,  together  with  all  the  conse- 
quences of  such  wrongful  act,  in  one  information  and  in  a 
single  count,  and  might  then  have  convicted  the  defendant  of 
as  much  of  the  same  as  he  could  have  satisfactorily  proved  to 
the  jury.  Thus  the  prosecutor  might  have  alleged  in  his  in- 
formation, in  one  single  count,  that  the  defendant  wilfully  set 
fire  to  the  books  with  the  intent  to  burn  the  same,  and  also  to 
burn  the  mill,  machinery,  tables,  chairs,  flour,  wheat,  etc.,  desig- 
nating each  article  separately,  and  that  the  whole  were  burned 
in  consequence  of  the  defendant's  wrongful  act,  and  then  con- 
victed the  defendant  of  whatever  might  have  been  proved. 
The  offense  of  setting  fire  to  and  l)urning  the  bo<»ks,  as  well 
as  the  offense  of  setting  fire  to  and  burning  the  mill,  would 
have  been  included  in  the  aggregated  offense  of  setting  fire  to 
and  burning  the  mill  with  all  its  contents.  But  we  do  not 
think  that  the  prosecutor  should  be  allowed  to  multiply  prose- 
cutions indefinitely  by  dividing  up  the  consequences  of  a  single 
wrongful  act,  and  founding  a  separate  prosecution  upon  each 
of  such  consequences.    Authorities  may  be  found  in  opposition 


to  these  vie 
versal  rules 
exceptions, 
now  state, 
settled  in  fi 
the  case  o 
City  of  Ola 
ccption. 
entirely  dif 
the  second 
acts,  and  n( 
the  real  fa 
necessary  t( 
ing  tlie  m 
setting  fire 
would  have 
the  books,  "\ 
by  the  sam 
defendant  < 
after  a  care 
and  acquitti 
the  mill  is  a 
and  burn  in 
taken  toget 
decided  iu  t 
20  Amer.  1 
Cooper,  5  C 
People,  sxi-p 
notes;  State 
Dec,  190. 

We  thinli 
to  the  defei 
its  judgmer 
the  order  tl 
and  further 

(All  the ; 


It 


STATE  V.  COLGATE. 


79 


to  these  views ;  hence  we  do  not  desire  to  state  them  as  uni- 
versal rules,  but  only  as  general  rules,  with  probably  some 
exceptions.  Just  what  the  exceptions  are,  however,  we  cannot 
now  state,  nor  is  it  necessary.  "Wo  shall  leave  that  to  be 
settled  in  future  cases.  We  hardly  think,  however,  that  either 
the  case  of  State  v.  Ilorneman,  16  Kan.,  452,  or  the  case  of 
City  of  Olathe  v.  Thomas,  26  Kan.,  233,  furnishes  any  such  ex- 
ception. In  the  first  case  two  different  kinds  of  offenses,  with 
entirely  different  natures  of  intent,  were  clearly  stated.  In 
the  second  case  the  defendant  clearly  committed  two  criminal 
acts,  and  not  merely  one.  It  must  be  remembered  that  under 
the  real  facts  of  this  case  the  proof  that  would  have  been 
necessary  to  convict  the  defendant  of  setting  fire  to  and  burn- 
injr  the  mill  would  have  been  sufficient  to  convict  him  of 
setting'  fire  to  and  burning  the  books;  while  the  proof  that 
would  have  been  necessary  to  convict  the  defendant  of  burning 
the  books,  with  the  additional  proof  that  the  mill  was  burned 
by  the  same  lire,  would  have  been  sufficient  to  convict  the 
defendant  of  burning  the  mill.  Therefore  we  would  think, 
after  a  careful  consideration  of  the  case,  that  the  prosecution 
and  acquittal  of  the  defendant  for  sotting  fire  to  and  burning 
the  mill  is  a  good  defense  to  the  prosecution  for  setting  fire  to 
and  burning  the  books;  and  we  think  the  following  cases, 
taken  together,  are  sufficient  authority  for  all  that  we  have 
decided  in  this  case:  Woodford  v.  People,  (i2  N.  Y..  117;  S.  C, 
20  Amer.  Kep.,  464;  Com.  v.  Squire,  42  ^lass.,  25S;  Jiex  v. 
Cooper,  5  Car.  &  P.,  *r)35;  Co?}i.  v.  Waife.  supra;  Hennessey  v. 
People,  supra;  cases  cited  in  1  Bish.  Crim.  Law,  §  329,  and 
notes;  State  v.  Cooper,  1  Green,  Law  (N.  J.),  361 ;  S.  C,  25  Amer. 
Dec,  490.     But  also  see  other  cases  lierotofore  cited. 

Wo  think  the  court  below  erred  in  sustaining  the  demurrer 
to  the  defendant's  plea  of  former  acquittal,  and  for  such  error 
its  judgment  will  be  reversed  and  the  cause  remanded,  with 
the  order  that  the  demurrer  be  overruled,  and  for  such  other 
and  further  proceedings  as  may  be  proper  in  the  case. 

(All  the  justices  concurring.) 


1: 


80 


AMERICAN  CRIMINAL  REPOUTS, 


Hughes  v.  People. 

(8  Colo.,  536.) 

Autrefois  acquit:  Plea  of—  Offenses  under  municijml  and  state  law, 

1.  Acts  hade  offenses  under  state  and  municipal  law.—  In  a  case 

where  a  single  act  has  b(!eii  made  punishable,  b<ith  by  the  general  law 
of  the  state  and  by  the  ordinances  of  the  town  wherein  it  was  com- 
mitted, it  constitutes  two  distinct  and  several  offenses,  subject  to  pun- 
ishment by  the  proper  tribunals  of  the  state  and  the  muuicipahty, 
respectively. 

2.  Effect  op  plea  op  former  conviction  after  demurrer  thkreti) 

sustained.—  In  tlie  absence  of  statute  altering  or  abolishing  the  com- 
mon-law rule,  the  effect  of  a  plea  based  ujwn  a  former  conviction  Ls, 
after  its  rejection  by  the  court  ujion  demurrer,  to  put  the  defendant  in 
the  situation  of  one  pleading  guilty  of  the  offense  charged. 

Error  to  District  Court  of  El  Paso  County.  * 

J.  L.  Williams,  for  plaintiff  in  error. 

T.  If.  Thomas,  attorney-general,  for  the  people. 

Stonk,  J.  Plaintilf  in  error  was  indicted  for  disturbing  tho 
peace,  and,  upon  arraignment,  i)leaded  in  bar  a  former  trial  and 
conviction  for  the  same  offense,  under  an  ordinance  of  tiio 
town  of  Colorado  Si)rings,  within  the  limits  of  which  town 
the  act  was  committed.  To  this  plea  the  prosecution  demurred, 
and  the  demurrer  was  sustained;  whereupon  the  court  ren- 
dered judgment  against  the  accused  tho  same  as  upon  trial  and 
verdict  of  guilty. 

The  principal  questions  presented  for  review,  and  argued  by 
counsel,  are:  (1)  AVas  the  plea  of  the  former  conviction  good? 
And  (2)  was  it  error  for  the  court,  upon  sustaining  the  de- 
murrer to  the  said  plea  in  bar,  to  give  iinal  judgment? 

Upon  the  first  question  there  is  a  diversity  of  opinion  by  the 
authorities,  some  liolding  tliat,  under  the  general  rule  that  no 
person  may  be  punislied  twice  for  tlie  same  olTense,  a  plea  of 
former  conviction,  such  as  was  interposed  by  the  plaintiff  in 
error  here,  should  he  held  a  bar  to  tlie  prosecution  in  which  it 
is  pleaded.  The  cases  most  in  point  which  we  have  been  able 
to  find  in  support  of  the  foregoing  doctrine  are  the  foUowing, 
which  are  cited  in  tho  brief  of  counsel  for  i)laintiff  in  error: 
State  V.  Thornton,  Z1  Mo.,  360;  State  v.  Cowan,  29  Mo.,  33<»; 


HUGHES  V.  PEOPLE. 


81 


State  v.  Welch,  36  Conn.,  216.  Most  of  the  authorities  holding 
this  view,  wliile  recognizing  the  rule  against  double  punish- 
ments, make  a  distinction  between  an  act  which  constitutes 
but  one  offense  and  an  act  wliicli  may  be  two  offenses,  for  each 
of  which  the  perpetrator  may  be  punished  separatel3^  Some 
of  those  authorities  rest  this  distinction  on  the  ground  that  the 
one  act  may  constitute  two  different  offenses  against  two  dis- 
tinct sovereignties  or  jurisdictional  authorities.  Moore  v. 
People,  U  How.  (U.  S.),  13;  Amhroae  v.  State,  Cy  Ind.,  351; 
Greenwood  v.  State,  6  Baxt.  (Tenn.),  507.  Another  distinction 
made  in  a  certain  class  of  cases  is  that  one  is  a  criminal  and 
tiie  other  a  civil  proceeding;  that  while  the  proceeding  under 
the  town  ordinances  is  to  recover  a  sum  as  a  penalty,  it  is  a 
civil  proceeding,  and  hence  not  a  bar  to  a  prosecution  by  the 
state  for  the  same  act.  Levy  v.  State,  6  Ind.,  281.  Still  another 
distinction  is  that  the  municipal  authority  vested  in  a  town  or 
city  under  its  ordinances  is  exercised  as  a  police  power  dele- 
gated by  tlie  legislature,  in  contradistinction  to  the  general 
judicial  power  of  the  state  to  punish  offenses  nuide  such  by 
general  law.  Shafer  v.  JDwuna,  17  Md.,  331.  While  I  can- 
not help  regarding  these  distinctions  as  refined,  and  more  ficti- 
tious than  real,  and  while  the  reasons  given  in  the  decisions  in 
justification  ""f  what,  after  all,  is  practically  double  punishment 
for  the  same  act,  fail  to  satisfy  me  of  the  logical  soundness  of 
the  doctrine,  yet  the  great  weight  of  authority  appears  to  up- 
hold this  view:  that  in  a  case  like  this  before  us,  the  single  act, 
being  made  punishable  both  by  the  general  law  of  the  state 
and  by  the  ordinances  of  the  town  wherein  it  was  committed, 
constitutes  two  distinct  and  several  offenses,  subject  to  punish- 
ment by  the  proper  tribunals  of  the  state  and  the  municipality 
respectively ;  and  we  must  therefore  yield  assent  to  the  doctrine 
which  we  concede  rests  upon  the  greater  weight  of  recognized 
authority. 

Mr.  Dillon,  in  his  work  on  ^[unicipal  Corporations,  discusses 
tiiis  question  fully,  and  concludes  that  the  great  weight  of 
authority  is  as  wo  have  stated  it  above,  although  upon  the  pre- 
cise question  he  puts,  "Can  the  same  act  be  twice  punished, 
once  under  the  ordinance  and  once  under  the  statute  ? "  he  says : 

"  The  cases  on  this  subject  cannot  be  reconciled.  Some  hold 
that  the  same  act  may  be  a  double  offense  — one  against  the 
Vol.  V  — 6 


82 


AMERICAN  CRIMINAL  REPORTS. 


state  and  one  against  the  corporation ;  others  regard  the  same 
act  as  constituting  a  single  oiTense,  and  hold  that  it  can  be  i)un- 
islied  but  once,  and  may  be  thus  punished  by  whichever  party 
first  acquires  jurisdiction." 

One  of  the  principles  stated  b;  Mr.  Dillon,  as  extracted  from 
the  authorities,  is  that  *'  when  the  act  is,  in  its  nature,  one 
which  constitutes  two  offenses  —  one  against  the  state  and  one 
against  the  municipal  government,—  the  latter  may  be  author- 
ized to  punish  it,  though  it  be  an  offense  under  the  state  law; 
but  the  legislative  intention  that  this  may  be  done  should  be 
manifest  and  unmistakable,  or  the  power  in  the  corporation 
should  be  held  not  to  exist."  Among  the  powers  specially  con- 
ferred by  the  legislature  upon  the  municipal  authorities  of 
towns  and  cities  in  this  state  is  the  power  "  to  prevent  and  sup- 
press riots,  routs,  affrays,  noises,  disturbances,  disorderly  assem- 
blies in  any  public  or  private  place  "  (Gen.  St.,  §  ;?312,  subd.  42); 
and  the  mode  of  enforcing  ordinances  of  such  municipal  cor- 
porations in  this  state  appears  to  be,  in  form,  a  civil  action, 
rather  than  a  strictly  criminal  proceeding.  Gen.  St.,  §j^  3.'U5- 
3317.  So  that  this  case  is  fairly  brought  within  at  least  two  of 
the  distinctive  classes  under  the  rule  hereinbefore  mentionoil, 
which  makes  the  one  act  constitute  two  offenses,  ])unishable  by 
different  jurisdictional  authorities,  and  under  different  modes 
of  procedure.  Vide  1  Dill.  Mun.  Corp.  (3d  ed  §§  307,  3t;s, 
409,  410,  and  note  1  to  section  368,  wherein  the  authorities  on 
the  subject  are  collected.  In  treating  of  the  constitutional 
question  involved,  Mr.  Cooley  remarks  that,  although  the  decis- 
ions are  not  uniform,  yet  the  clear  weight  of  authorities  is 
"  that  the  same  act  may  constitute  an  offense,  both  against  the 
state  and  the  municipal  corporations,  and  both  may  punish  it 
without  violation  of  any  constitutional  principle."  Const. 
Lim.,  199. 

Upon  the  second  question,  counsel  for  plaintiff  in  error  con- 
tend that,  after  sustaining  a  demurrer  to  a  plea  of  former 
conviction,  the  proper  order  is  that  the  defendant  answer  over; 
that  in  this  case  the  plaintiff  in  error  should  have  been  allowed 
his  plea  of  not  guilty, and  been  put  to  trial;  and,  in  support  of 
this  view,  counsel  cite  the  case  of  Fnlkner  v.  State,  3  lleisk.. 
33 ;  but  we  find  that  the  decision  in  that  case  was  based  on  a 
statute  which  provided  that  a  defendant  entering  a  plea  of 


former  con 
enter  or  rel 
be  a  good  ( 
that  such  St 
mon  law  ' 
111.,  373,  an 
cases  are  m 
doctrine  tli; 
without  an 
ample  auth 
below  in  ca 
irround  thai 
the  same  as 
mits  the  co 
he  has  alref 
untrue  u])ot 
as  having 
ingly.    Tin 
and  folio  we 
tains  in  so 
where  such 
bar.    Archl 
cited;  John 
552;  which 
fore  referrc 
Tennessee  s 
in  isr.l,  Av 
plaintiff  in 
murrer  to  t 
the  plea  av 
former  con 
one  against 
of  course,  ; 
sion,  that  tl 
and  the  oi 
were  one  a 
been  held 
ecutor  had 
])leaded,  h( 
ring  theret 


I 


i 


HUGHES  V.  PEOPLE. 


83 


former  conviction  should  not  be  thereby  debarred  the  right  to 
enter  or  rely  on  any  other,  or  as  many  other,  pleas  as  would 
be  a  good  defense  to  the  indictment;  and  it  may  be  presumed 
that  such  statute  was  intended  to  change  the  practice  at  com- 
mon law  '  1  such  cases.    Counsel  also  cite  Yundt  v.  People,  65 
111.,  P>73,  and  Ilot^him  v.  People,  84  111.,  87.     Neither  of  these 
cases  are  in  point  uj)on  this  question,  since  they  go  only  to  the 
doctrine  that,  in  indictments  for  crime,  a  trial  cannot  be  had 
without  an  issue  nuule  by  plea.     On  the  other  hand,  there  is 
ample  authority  to  support  the  practice  pursued  by  the  court 
below  in  cases  of  misdemeanors.    This  practice  is  based  on  the 
oTound  that,  where  the  plea  is  held  not  good,  it  is  to  be  regarded 
the  same  as  a  plea  of  guilty.    The  defendant  by  his  plea  ad- 
mits the  commission  of  the  offense  as  charged,  but  pleads  that 
he  has  already  been  punished  for  it.    This  plea  being  adjudged 
untrue  upon  the  facts  stated  therein,  he  stands  before  the  court 
as  having  pleaded  guilty,  and  judgment  is  rendered  accord- 
ingly.   This  seems  to  have  been  the  i>ractiee  at  common  law 
and  followed  in  this  country,  although  a  different  practice  ob- 
tains in  some  states;   but  usually,  we  think,  under  statutes 
where  such  plea  is  treated  tas  a  plea  in  abatement  and  not  in 
bar.    Archb.  Crim.  Pr.,  .^.jO,  and  note  h,  with  the  authorities 
cited;  Johnson  v.  People,  22  111.,  314;  State  v.  Epps,  4  Sneed, 
5.52;  which  last  is  an  earlier  case  than  the  one  in  3  Ileisk.,  be- 
fore referred  to,  and  before  the  practice  was  changed  by  the 
Tennessee  statute  of  ISOO,  upon  which  the  latter  case,  decided 
in  1801,  was  based.     Another   point  made   by  counsel   for 
plaintiff  in  error  is  that  the  court  erred  in  sustaining  the  de- 
murrer to  the  plea  of  former  conviction,  for  the  reason  that 
the  plea  averred  that  the  offense  for  which  there  had  been  a 
former  conviction  and  punishment  was  the  same  offense  as  the 
one  against  which  this  plea  was  interposed,  and  the  demurrer, 
of  course,  admitted  the  fact  so  pleaded;  that  upon  this  admis- 
sion, that  the  offense  of  which  the  accused  then  stood  charged, 
and  the  one  of  which  he  had  pleaded  the  former  conviction, 
were  one  and  the  same  act  and  offense,  the  plea  should  have 
been  held  good  and  the  demurrer  overruled ;  that,  if  the  pros- 
ecutor had  not  intended  to  admit  the  truth  of  the  facts  thus 
})leaded,  he  should  have  replied  to  the  plea,  instead  of  demur- 
ring thereto;  and  the  case  of  Com.  v.  BoswoHh,  113  Mass.,  200, 


ill 


i 


81 


AMERICAN  CRIMINAL  REPORTS. 


is  cited  as  in  point.  Tliere  the  defendant  was  indicted  in  the 
superior  court,  and  phjuded  a  former  acquittal  in  the  munici- 
pal court  of  the  town  of  Taunton.  In  delivering  tlie  opinion 
of  the  court,  Chief  Justice  Gray  concludes  as  follows : 

"The  plea  not  necessarily  sliowing  that  the  two  offenses 
were  distinct,  nor  that  the  municipal  court  had  no  jurisdiction, 
the  attorney  of  the  commonwealth,  if  ho  intended  to  deny 
their  identity,  should  have  joined  issue  on  the  i)lea,  and  suh- 
mitted  that  fact  to  the  determination  of  a  jury.  By  demui-ring 
to  the  plea  he  admitted  the  truth  of  the  allegation  therein  tliat 
the  offense  now  charged  against  the  defendant  was  the  same 
of  which  ho  had  already  been  acquitted.  The  judgment  of  the 
superior  court  sustaining  the  demurrer  to  the  plea  of  autnfok 
acquit  was  therefore  erroneous  and  must  be  reversed."  Citing 
2  Hale,  P.  C,  243;  1  Stark.  Crim.  Fl.  (2d  ed.),  325,  320;  Khuj 
V.  Emden^  9  East,  437;  Com.  v.  Curtis,  11  Pick.,  134. 

The  principal  case  above  cited  fails  of  being  in  point,  for  the 
reason  that  the  plea  in  that  case  did  not  show  that  the  former 
acquittal  was  in  a  proceeding  under  any  ordinance  of  the  town 
of  Taunton  and  not  under  a  general  statute.  For  all  that  is 
shown  by  the  plea,  and  by  that  case,  the  former  acquittal  may 
have  been  in  a  court  of  concurrent  criminal  jurisdiction  (within 
the  sum  of  $50)  with  the  court  wherein  the  same  Avas  pleaded, 
and  under  a  like  form  of  procedure.  In  the  case  before  us  tlic 
plea  averred  that  the  former  conviction  was  had  "before  one 
George  II.  Stewart,  who  was  then  and  there  a  justice  of  the 
peace  in  and  for  the  county  of  El  Paso  aforesaid,  and  police 
magistrate  of  the  town  of  Colorado  Springs,  state  and  county 
aforesaid;  .  .  .  that  said  conviction  was  for  a  violation  of 
section  4  of  article  1,  section  2  of  article  1,  and  section  1  of 
article  3,  of  an  ordinance  concerning  misdemeanors,  being  one 
of  the  ordinances  of  the  said  city  of  Colorado  Springs,  then 
and  there  in  full  force  and  effect ;  that  the  said  conviction  was 
had  in  the  name  of  the  people  of  the  state  of  Colorado  afore- 
said ;  that  the  offenses  set  forth  and  defined  in  said  sections 
of  said  ordinance  and  the  said  indictment,  and  of  which  the 
said  defendant  was  and  is  convicted  as  aforesaid,  are  one  and 
the  same  in  truth  and  fact,  and  are  identical. 

This  plea  thus  showed  on  its  face  that  the  former  conviction 
was  had  under  the  ordinances  of  the  town  of  Colorado  Springs, 


m 


m 


under  a  ju 
below  was 
that  town, 
by  the  gen 
we  have  al 
one  act  coi 
by  the  mu 
under  the 
the  first  qi: 
court  did  n 
otlicr  wore 
he  had  be 
charged, av 
which  it  a) 
foi'cnt  offei 
ailirmed. 


IIkt.m,  fl. 
in  the  hear 
part  in  this 

NOTK.— Iti 

cited  in  the  fo 
niado.  A  cai 
(U.  S.),  13,  w 
nieaniiif!;,  pur 
of  miinic-ipul 
tinctioii  Ix'tw 
(lictcil  and  oo 
lie  ini}^lit  al.s( 
iiois  and  the, ; 
tint;,"  lit!  sayi 
cuiigrt'HS,  for 
takiiij;  iiis  ski 
same  olTonso. 
of  a  law.  A 
injured  partj 
p<!ace  in  cons 
lant'c,  to  be 
United  Statoi 
He  may  l>e  s! 
an  infraction 
trfinsgression 
United  Statei 


HUGHES  V.  PEOPLE. 


85 


under  a  jurisdiction  and  mode  of  procedure  of  which  the  court 
below  was  bound  to  take  judicial  notice,  since  the  authority  of 
that  town,  as  of  all  others  in  the  state,  is  conferred  and  defined 
by  the  general  statutes  concerning  towns  and  cities,  to  which 
we  have  already  referred,  and  hence  upon  the  ground  that  the 
one  act  constituted  two  distinct  offenses, —  the  one  punishable 
by  the  municipal  authorities  and  the  other  by  the  state;  and 
under  the  different  forms  of  procedure  provided,  as  held  upon 
the  first  question  herein  discussed,  we  must  also  hold  that  the 
court  did  not  err  in  sustaining  the  demurrer  to  the  plea.  In 
other  words,  the  plea,  while  averring  that  the  offense  of  which 
he  had  been  convicted,  and  that  of  which  he  then  stood 
charged,  were  one  and  the  same  offense,  it  set  forth  facts  from 
which  it  aj)i)eared  that  they  were  legally  two  distinct  and  dif- 
ferent offenses.    The  judgment  of  the  court  below  is  therefore 

affirmed. 

Judgment  affirmed. 

IFki.m,  J.,  having  presided  as  district  judge  of  the  court  below 
in  tlic  liearing  and  rendition  of  judgment  in  this  case,  took  no 
part  in  this  decision. 

Note.—  It  would  be  useless  to  attempt  to  reconcile  the  conflicting  decisions 
cited  in  the  foregoing  opinion,  and  several  others  to  whicli  reference  might  be 
niatle.  A  careful  analysis  of  the  decision  in  Moore  v.  The  People,  14  How. 
(U.  S.),  13,  will  show  that  the  principle  ui)on  which  it  is  based,  its  scope, 
meaning,  piu'port  and  effect,  are  inapplicable  to  prosecutions  for  infractions 
of  niunicipal  by-laws.  Mr.  Justice  Grier  in  that  opinion  j)oints  out  the  dis- 
tinction between  the  statute  of  Illinois  under  which  the  defendant  was  in- 
(lictwl  and  convicted,  and  the  act  of  congress  under  which  it  was  claimed 
he  migiii  also  be  indicted  and  convicted,  and  shows  th.at  the  statute  of  Illi- 
nois and  the  act  of  congress  were  different  in  many  respects.  "  But  admit- 
ting," he  says,  "  that  the  plaintiff  in  error  nuiy  bo  liable  under  an  act  of 
congrcHs,  for  the  same  acts  of  harboring  and  preventing  the  owner  from  re- 
taking his  slav»\  it  does  not  follow  that  he  wili  be  twice  punished  for  the 
sani(!  olfense.  An  offense,  in  its  legal  signification,  means  a  transgression 
of  n  law.  A  man  may  be  compelled  to  make  reparation  in  damages  to  the 
injured  party,  and  be  liable  also  to  punishment  for  a  breach  of  the  public 
peace  in  conseijuence  of  the  same  act ;  and  may  be  said,  in  common  par- 
lance, to  be  twice  punished  for  the  same  offense.  Every  citizen  of  the 
United  States  is  also  a  citizen  of  .a  state  or  territory  (in  which  he  resides). 
He  may  he.  said  to  owe  allegiance  to  two  sovereigns,  and  may  be  liable  for 
an  infraction  of  the  laws  of  either.  The  same  act  may  be  an  offense  or 
transgression  of  the  laws  of  both.  Thus  an  assault  upon  the  marshal  of  the 
United  States,  and  hindering  him  in  the  execution  of  legal  process,  is  a  high 


86 


AMERICAN  CRIMINAL  REPORTS, 


ofTense  against  the  United  States,  for  wliicli  the  perpetrator  is  liable  to 
punishment;  and  tlie  same  act  may  be  also  a  gross  breach  of  the  peace 
of  the  state,  a  riot,  assault  or  murder,  and  subject  the  person  to  a  punishnuut 
under  the  state  laws  for  a  misdemeanor  or  felony.  That  either  or  both  may 
(if  they  see  fit)  punish  such  an  offender  cannot  be  doubted.  Yet  it  inmiot 
be  truly  averred  that  the  offender  has  been  twice  punished  for  tin?  same 
offense ;  but  only  that  by  one  act  he  has  committed  two  offenses,  for  each 
of  which  he  is  justly  punishable."  Mr.  Justice  M'Lean  dissents  from  the  <k)c- 
trine  laid  down  by  the  majority  of  the  court,  that,  for  one  and  the  same  act,  a 
person  may  be  punished  under  a  law  of  the  state,  and  also  under  an  act  of 
congress;  and  in  Moore  v.  ThePeojtle,  siijira,  he  refers  to  his  dissent  nmde 
in  Fox  V.  State  of  Ohio,  5  How.,  410.  In  ^foo^^e  v.  The  People  ho  says :  "  It 
is  contrary  to  the  nature  and  genius  of  our  govermnent  to  piuiisli  an  indi- 
vidual twice  for  the  same  offense.  Where  the  jurisdiction  is  clearly  vi'sti-d 
in  the  federal  government,  and  an  adeijuate  i)unisliment  lias  In^en  provided 
by  it  for  an  offense,  no  state,  it  api)ears  to  me,  can  punish  tlie  siime  act. 
The  assertion  of  such  a  power  involves  the  right  of  a  state  to  punish  all 
offenses  punishable  under  the  acts  of  congress.  This  would  practically  dis- 
regard, if  it  did  not  destroy,  this  important  brandi  of  criminal  justice, 
clearly  vested  in  the  federal  government.  Tlie  exercise  of  such  a  j)ower  by 
the  states  would  in  effect,  l)e  a  violation  of  the  constitution  of  the  United 
States,  and  the  constitution  of  the  respective  states.  They  all  provide 
against  a  second  punishment  for  the  same  act.  It  is  no  satisfactory  answer 
to  this,  to  say  that  the  states  and  federal  government  constitute  ditfcrent 
sovereignties,  and,  consequently,  may  each  punish  offenders  under  its  own 
laws. 

"  It  is  true  the  criminal  laws  of  the  fe<leral  and  state  governments  ema- 
nate from  different  sovereignties;  but  they  ojierate  upon  the  same  pcdjile, 
and  should  have  the  same  end  in  view.  In  this  resjiect,  the  federal  govern- 
ment, though  sovereign  within  the  limitation  of  its  powers,  may,  in  some 
sense,  be  considered  as  the  agent  of  the  states,  to  iirovide  for  the  general 
welfare,  by  punishing  offenses  under  its  own  laws  within  its  jurisdiction. 
It  is  believed  that  no  government,  regulated  by  laws,  punishes  twice,  crim- 
inally, the  same  act.  And  I  deeply  regret  that  our  government  should  lie 
an  exception  to  a  great  principle  of  action,  sanctioned  by  liumanity  and 
justice," 

It  may  be  safely  said  that  the  time  never  will  come  when  a  court  com- 
iwsed  of  several  judges,  each  of  whom  is  to  ri*ason  out  the  ease  for  him- 
self, will  unanimously  agree  that  a  ]5erson  may  Imj  ]ninished  under  a  law  of 
the  state  and  also  under  a  law  of  congress  for  the  same  act.  But  whatever 
doubts  may  ai-ise  on  this  subject,  or  whatever  reasons  may  l)e  urged  or  sug- 
gested in  favor  of  the  principle  for  punishing  a  man  twice  for  a  single  act 
which  constitutes  an  offense  against  the  state  and  also  against  the  federal 
sovereignty,  such  doubts,  reasons  and  suggestions  have  no  application  to 
the  principle  applicable  to  a  case  in  which  one  act  constitutes  an  offense 
against  a  municipal  ordinance  and  also  against  a  state  law.  It  has  uni- 
formly been  hold  by  American  courts,  state  and  federal,  that  the  state  and 
federal  governments  are  independent  sovereignties.  Each  has  its  own  gov- 
ernment, makes  its  own  laws,  establishes  its  own  tribunals,  elects  its  own 
officials  and  enforces  its  own  mandates  witliin  its  legitimate  sphere ;  and 


although  the 
the  governin 
to  the  physi( 
as  the  great 
tiie  coninion' 
these  twosov 
stand  in  tlie  i 
separated  by 
and  federal  g 
relative  thert 
sideration. 
possessing  on 
to  the  (ledari 
izes  the  muni 
offenses,  Th 
punishable  ui 
same  source, 
delegated  \yo\ 
of  the  iiiunic 
the  laws  of  t 
cessfuUy  and 
jtunishcd  unil 
law  he  may  s 
placed  twice 
herein  sought 
two  governin 
On  the  <me  li 
each  other,  a 
ereign ;  but  < 
crnmeiit  art 
governnu'iit  - 
as  a  member 
own  c(mveni 
into  a  niiinic 
may  be  alter 
they  may  be 
The  nuinicip 
for  the  punis 
making  the  i 
such  olfenses 
must  be  by 
the  state.  C 
at  one  and  tl 
ecution  and 
then  and  the 


i 


fm 


HUGHES  V.  PEOPLE. 


87 


although  the  line  of  demarcation  between  the  government  of  the  state  and 
the  government  of  the  Union  cannot  be  traced  by  landmarks  discernible 
to  the  physical  eye,  yet  to  the  eye  of  the  law  the  line  is  as  well  defined 
as  tlie  great  natural  boundary  which  separates  the  territorial  limits  of 
the  commonwealths  of  Iowa  and  Illinois  —  the  Mississippi  river.  So  that 
these  two  sovereignties,  exercising  jurisdiction  within  the  limits  of  the  state, 
stand  in  the  same  indcjHjndent  relation  to  e.ich  other  that  they  would  if 
separated  by  visible  bi>un<laries.  Hence,  as  the  criminal  laws  of  the  state 
and  federal  governments  emanate  from  different  sovereignties,  a  decision 
rtlativf  thereto  does  not  bear  any  striking  analogy  to  the  jM)int  under  con- 
sideration. The  municipal  government  is  the  mere  creature  of  the  state, 
pessessing  only  such  iwwers  as  are  expressly  granted  or  necessarily  incident 
tt)  the  declared  objt'cts  and  purposes  of  the  corimration.  The  state  author- 
izes the  numicipality  to  pjiss  certain  ordinances  for  the  punishment  of  minor 
olTenses.  The  offenses  whicli  these  onlinances  define  may  or  may  not  1x3 
])unishal)le  under  the  laws  of  the  state.  Both  derive  their  powers  from  the 
same  source,  or,  more  strictly  sjKniking,  one  is  a  sovereign  and  the  other  a 
delegated  power.  And  wlule  it  may  seriously  be  doubted  whether  a  by-law 
of  tlie  numicipality  which  undertakes  to  punish  acts  made  punishable  by 
the  laws  of  the  state  is  of  any  binding  force  or  effect,  it  never  can  be  suc- 
cessfully and  logically  maintained  that  a  jjcrson  may  be  prosecuted  and 
punished  under  both  laws  for  the  same  act.  When  prosecuted  under  either 
law  he  may  successfully  interpose  the  constitutional  gu.aranty  against  being 
placed  twice  in  Jeopardy  for  one  and  the  same  offense.  The  distinction 
herein  sought  to  be  drawn  arises,  a.s  we  have  seen,  from  the  nature  of  the 
two  governments  and  the  sources  from  which  they  derive  tlieir  authority. 
On  the  one  hand  the  state  and  national  governments  .are  independent  of 
each  other,  and  the  [jowers  which  each  exercises  arc  origin.al,  inherent,  sov- 
ereign; but  on  the  other  hiind,  the  powers  exercised  by  the  municipal  gov- 
ernment are  derivative,  delegated,  dependent.  Indeed  the  municipal 
government  —  if  it  may  be  so  called  —  partakes  of  the  sovereign  power  only 
!\H  a  member  of  the  sovereign  state.  The  sovereign  state,  for  purposes  of  its 
own  convenience,  incorporates  the  people  residing  within  a  certain  territory 
into  a  nuuiicipality  and  delegates  to  them  certain  powers.  These  powers 
may  be  altered,  amended  and  withdrawn  at  pleasure;  but  until  withdrawn 
tiicy  may  be  exercised  as  effectually  by  the  municipality  as  by  the  state. 
The  municipality,  by  virtue  of  these  delegated  powers,  may  pass  ordinances 
for  the  jtunishment  of  petty  offenses,  and  the  state  may  likewise  pass  laws 
making  the  acts  so  prohibited  offenses  against  the  dignity  of  the  state.  If 
such  olfenses  may  be  punished  at  all  under  the  municipal  ordinances  it 
must  be  by  virtue  of  the  powers  delegated  to  the  municipality  as  agent  of 
tlie  state.  Can  this  sovereign  power  reside  in  the  principal  and  the  agent 
at  one  and  the  same  time?  If  it  may,  when  the  power  is  once  put  into  ex- 
ecution and  enforced  by  either  the  principal  or  the  agent,  is  it  not  thereby, 
then  and  there,  fully  executed? 


-^'?;«k;"|'''''i 


.V  -^^.ii 


! 

88 


AMERICAN  CRIMINAL  REPORTS. 


Statk  v.  Karveu. 

(0")  Iowa,  53.) 

Bastardy:  Unchastity  of  the  tvoman  —  Motive, 

1.  Unchastity  of  the  woman.— In  a  biistardj  proceeding,  especially  when 
the  complainant  claims  to  have  been  ravislied,  where  the  only  question 
is  that  of  paternity,  iincha.'te  conduct  of  the  woman  with  a  man  other 
than  the  defendant  may  be  sliown.  an<l  e8i)e<'ially  so  if  the  circuiii- 
Btances  do  not  preclude  the  possibility  that  the  other  was  the  father  of 
the  child. 
2.  Motive.— Evidence  tcndin<;  to  show  the  motive  of  complainant  in 
cliarging  upon  the  defendant  the  i)atirnity  of  a  child  which  should 
have  been  charged  upon  another  is  ailniissible. 

Appeal  from  ])es  Moines  District  Court, 

The  action  was  Irought  to  cliargo  the  defendant  with  tlie 
support  of  a  bastard  chikl.  There  was  a  verdict  of  guilty,  aiul 
judgment  was  rendered  against  him  accordingly,     lie  appeals. 

Dodge  cff  Dodge,  for  appellant. 

Smith  McPhei'son,  attorney-geneial,  for  the  state. 

Adams,  J.  The  defendant  is  charged  with  being  the  father 
of  a  bastard  child  born  to  one  Li/zie  Mohler,  sister  to  the  de- 
fendant's wife,  all  residing  in  tlie  city  of  Burlington.  Tiie 
complainant  testified  in  these  woru:<:  "  My  sister  and  I  were 
not  on  good  terms  all  the  time.  Seventh  of  July  1  went  over 
to  his  house;  dcm't  know  what  time.  ISlr.  and  Mrs.  Karver 
were  all  that  were  there;  left  there  quarter  after  nine.  ^Vo 
had  not  gone  more  than  throe  blocks  when  this  thing  toolc 
place,  in  an  open  public  place,  grtiund  kind  of  siding  fi'onting 
one  street,  lie  asked  me  on  that  lot.  It  was  the  first  time 
anything  ever  took  jjlace  between  us.  I  did  not  consent.  1 
jerked  away  and  walked  off.  He  followed  me  and  throw  mo 
right  down,  lie  ravished  me.  1  hollered.  There  were  no 
marks  on  my  pereon;  my  hat  was  torn."  She  also  testilit'il 
that  he  had  connection  with  her  another  time  by  force,  in 
nearly  the  same  place.  The  defendant  testified,  denying  that 
he  ever  had  connection  with  her. 

For  the  purpose  of  impairing  the  credibility  of  her  testi- 
mony the  defendant's  counsel  asked  him,  when  a  witness  upon 


STATE  V.  KARVER. 


89 


the  stand,  two  questions,  which  arc  in  these  words:  " //<^  2S, 
You  say  that  she  came  to  your  house  in  January,  1882.  State 
how  she  came  to  leave;  what  was  the  trouble?"  "////.  2l>. 
You  tell  the  court  what  imprudent  act  you  noticed,  or  about  a 
man  boin<?  with  her  one  night  at  your  house, —  go  on  and  tell 
it, —  in  January,  1SS2."  lioth  these  questions  were  disallowed 
as  immaterial,  and  the  ruling  is  assigned  as  error. 

In  our  opinion  the  Avitness  should  have  been  allowed  to 
answer  them.  That  tiie  complainant  had  an  illegitimate  child 
by  some  one  is  not  denied.  That  she  charged  it  upon  the 
wrong  person  the  jury  did  not  believe.  But  she  might  do  so 
if  slie  was  not  a  truthful  person,  and  had  a  strong  motive  for 
doing  it.  The  questions  asked  and  disallowed  indicated,  upon 
their  face,  that  the  defendant  expected  to  ])rove  that  the  com- 
plainant was  guilty  of  imjirudent  conduct  with  some  man  at 
the  do  fondant's  house,  and  that  she  had  trouble  and  left  the 
family.  If  the  defendant  and  his  w'ife  witnessed  unchaste 
conduct  on  the  part  of  the  complainant,  and  she  had  trouble 
Avith  them,  either  on  that  account  or  any  other,  su  a  fact,  we 
think,  would  tend  to  render  the  defendant's  testimony  more 
credible,  and  her  testimony  less  so,  by  showing  a  motive  on 
her  part  for  charging  upon  him  the  paternity  of  a  child  which 
should  have  been  charged  upon  another;  and  especially  is  this 
so  as  the  cliarge  made  is  that  she  was  ravished.  Again,  in  a 
case  of  this  kind,  where  the  only  question  is  that  of  paternity, 
it  should  always  be  allowable  to  show  unchaste  conduct  with 
a  man  other  than  the  defendant,  and  especially  if  the  circum- 
stances are  such  as  not  to  preclude  the  possibility  that  the 
other  was  the  fjither  of  the  chihl. 

It  is  objected  by  the  attorney -general  that  the  questions  are 
not  sulKciently  explicit  to  indicate  what  the  defendant  ex})ecte(l 
to  show.  But  we  do  not  think  that  this  objection  occurred  to 
any  one  on  the  trial  below.  The  questions  were  asked  in  ex- 
aniinatioii  in  chief,  and  were  about  as  ex|)licit  as  they  could 
well  have  been  without  being  leading.  AVe  think  that  the 
coint  fully  understood  the  drift  of  the  inquiry, hut  did  not  deem 
it  a  proper  one.  In  our  opinion,  the  court  erred  in  disallowing 
the  questions,    lleversed. 


90  AMERICAN  CRIMINAL  REPORTS. 

Reg.  v.  Coady. 
(16  Cox's  C.  C,  bu.) 

BOYCOTTINO:  1  an(l3  WilJ.  /,,  c.  U  (Whilcboy  Act),  s.  3—  ZMnirfiil  notice- 
Declaring  pirson  "boycotted'''  and  to  be  shunned— Cunatruction  of, 
question  for  the  jury. 

Question  of  fact  should  not  be  withdrawn  from  jury.— Tlic  pris- 
oner was  indicted  under  the  Wiiiteboy  Act  for  postinji,-  a  notice  to  tiie 
following  effect :  "  G.  T.  is  hereby  declared  boycotted  by  the  compe- 
tent tribunal  for  taking  into  his  employment  Stanley,  the  assassin. 
All  Irislimen  must  shun  him  as  their  deadly  enemy,"  The  indictment 
alleged  that  the  notice  tended  (I)  to  excite  an  unlawful  confederacy; 
(2)  to  excite  a  riot;  (3)  to  induce  persons  to  shun  George  Thomi)- 
son,  against  the  form  of  tiie  statute.  The  judge  at  the  trial,  upon  the 
requisition  of  the  counsel  for  the  crown,  ruled  that  the  notice  on  the 
face  of  it  was  an  unlawful  notice  within  the  meaning  of  the  statute, 
but  reserved  for  the  court  the  point  whether  he  should  have  so  ruled 
or  should  have  left  tlie  question  to  the  jury.  The  jury,  in  answer  to 
the  only  question  submitted  to  them,  found  that  the  pri.soni-r  had  in 
fact  posted  the  notice  and  the  prisoner  was  accordingly  convicted. 
Held,  that  the  notice  was  capable  of  bearing  the  meaning  alleged  in 
the  indictment ;  but  that  the  questitm  whether  it  did  in  fact  bear  such 
meaning  should  not  have  been  withdrawn  from  the  jury. 

(Before  Morris,  C.  J.,  Pallcs,  C.  l'.,  Fitzgerald,  J.,  Fitzgerald, 
13.,  Lawson,  Barry  and  Harrison,  JJ.) 

Court  for  crown  cases  reserved  (Ireland). 

Case  reserved  by  Barry,  J.,  at  the  winter  assizes,  1881,  for 
the  Leinster  winter  assize  county,  held  at  Kilkenny. 

The  prisoner  was  tried  on  an  indictment  of  which  the  fol- 
lowing is  substantially  a  copy: 

"  Queen's  County,  to  wit.  Tiie  jurors  for  our  Lady  the  Queen, 
upon  their  oatlis  present  that  James  Coady,  on  the  2Tth  day  of 
November,  in  tiie  year  of  our  Lord  1S81,  unhiwfully  and 
knowingly  did  post  at  Chajjcl  Ilill,  in  the  Queen's  county,  a 
certain  notice,  to  wit,  a  notice  to  the  effect  foIlowin<r:  Take 
notice:  George  Thompson,  of  lieckfield,  is  hereby  declared 
'boycotted'  by  tlie  competent  tribunal  for  taking  into  his 
employment  Stanley,  the  assassin.  All  Irishmen  must  shun' 
him  as  their  deadly  enemy.  "Which  notice  tended  to  excite  an 
unlawful  confederacy,  against  tiie  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  of  our  Lady 
the  Queen,  her  Crown  and  Dignity. 


"Andtl 
but  stating 

"And  tl 
further  pr 
in  the  yen 
certain  not 
tioned,  (hn 
shun  one  ( 
such  case 
Lady  the  ( 

From  th 
by  two  pol 
prisoner  p( 
proof  cons 
prisoner  (a 
Tiionip.'ion 
on  evidenc 
the  mean  i I 
as  alleged 
hand,  it  wa 
the  learnec 
notice  witl 
question  fo 
])0stcd  the 
tjuestion  h 
([uestion  r( 
under  the  f 

MiU'Der 
the  pi'isonc 
torprol  if  1 
not  to  l»e  i 
count  in  tl 
a  (juostion 
contents  o! 
slill  a  (pies 
drew  tliat 
di'awn  tli( 
]yhdan,  1 


REG.  V.  COADY. 


0i 


"  And  the  jury  aforesaid,  etc.  (Second  count  same  as  firet, 
but  stating  that  the  notice  tended  to  excite  a  riot.) 

"And  the  Jurors  aforesaid,  upon  their  oaths  aforesaid,  do 
further  present  that  the  said  James  Coady,  on  the  day  and 
in  the  year  aforesai<l,  unhiwfully  and  knowingly  did  ))ost  a 
certain  notice,  that  is  to  say,  the  notice  in  the  first  count  men- 
tioned, directing  all  Irishmen  to  do  a  certain  act,  namely,  to 
shun  one  (ieorge  Thompson,  against  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  of  our 
Lady  tlic  Queen,  her  Crown  anil  Dignity." 

From  the  case  stated  it  api)eared  that  it  was  distinctly  proved 
by  two  policemen  (who  caught  the  prisoner  jn  the  act)  that  the 
prisoner  posted  the  notice  set  out  in  the  indictment,  and  this 
proof  constituted  the  case  for  the  crown.  Counsel  for  the 
prisoner  (admitting  that  there  was  sucii  a  person  as  George 
Thompson  referred  to  in  the  notice)  submitted  that  there  was 
on  evidence  to  go  to  tiie  jury  that  the  notice  was  one  within 
the  meaning  of  tlie  Whiteboy  Act  (I  and  2  Will.  4,  c.  44),  s.  3, 
as  alleged  in  the  indictment.  For  the  crown,  on  the  other 
band,  it  was  contended  that  the  notice  spoke  for  itself,  and  that 
the  learned  judge  should  rule  that,  on  the  face  of  it,  it  was  a 
notice  within  the  Whiteboy  Act  as  alleged,  and  that  the  only 
question  for  the  jury  was,  wiiether  the  prisoner  had  in  fact 
])0sted  the  notice  as  alleged.  Accordingly  that  was  the  only 
(juestion  left  to  the  jury,  who  convicted  the  prisoner.  The 
question  reserved  for  the  court  was  whether  the  conviction 
under  tiie  foregoing  circumstances  ought  to  stand  or  be  <pmshed. 

MacDcrnwnt,  Q.  C,  IF.  MeTMnghlln,  Q.  C,  and  Loii^ry,  for 
the  prisoner.  "FKncotted"  is  a  term  that  the  jury  may  in- 
terpret if  they  have  suilicient  evidence,  but  it  is  r.  word  of  art 
not  to  bo  interi)reted  by  the  judge.  Every  word  of  the  third 
count  in  the  indictment,  including  tlie  word  "knowingly,"  was 
a  (juestion  for  the  jury,  and  the  jury  only.  Knowledge  of  the 
contents  of  the  document,  although  proved  conclusively,  was 
slill  a  (juestion  for  the  jury  only;  and  when  the  crown  with, 
drew  that  from  the  jury  they  ran  all  th'  risk  of  having  with- 
di-awn  the  whole  case.  Ji<'.i'  v.  liurnn.  in  note  to  Rex  v. 
W/u'laii,  1  Cr.  &  Dix.,  191 ;  liitj.  v.  Colleran,  Ir.  11.,  7  C.  L., 


92 


AMERICAN  CRIMINAL  REPORTS. 


277;  1  Taylor  on  Evidence,  Gth  ed.,  p.  Gl;  li.  v.  Glnhcood,  1 
Leach,  U2;  2  East,  P.  C,  1120,  S.  0. 

Eijan,  Q.  C,  and  Coats,  for  the  crown.  A  great  deal  of  tlie 
fallacy  of  the  argument  on  the  other  side  arises  from  the  mean- 
ing put  by  them  on  the  words  "  riot "  and  "  confederacy  "  in 
the  third  section  of  the  1  and  2  Will.  4,  c.  -14.  "  Kiot "  and 
"  confederacy  "  in  that  section  mean  a  future  riot  or  confed- 
eracy, and  not  one  going  on  or  existing  at  the  time.  If  it  was 
a  present  confederacy  we  might  be  called  on  to  give  evidence 
of  it.  It  is  settled  that  judges  are  to  take  notice  of  the  laii- 
giiage  of  the  country.  licff.  v.  liowliuuh,  17  Q.  !>.,  071,  0S4; 
Itey.  V.  Aspinall,  2  Q.  P..  liiv.,  48,  01.  Where  the  <locumont 
cannot  be  construed  without  some  extraneous  circumstances  it 
IS  sometimes  left  to  the  jury;  but  wliere  the  document  sjH'aks 
for  itself  it  is  a  question  for  the  judge  and  not  for  the  juiv. 
Eex  V.  B(mohc)\  4  C.  6c  P.,  502;  Rex  v.  liolnnson,  2  Leacli,  74i>. 
They  also  cited  and  commented  on  Ii<v  v.  ]* Id-ford,  4  ('.  »t  P., 
227;  Beg.  v.  Siahh,  2  C.  »fe  K.,  SS2;  IL  v.  2£cDevmond,  Jebbs' 
C.  ct  P.  Cas.,  118. 

The  judgment  of  the  court  was  delivered  by 

Morris,  C.  J.  Tiie  counsel  for  the  prisoner  at  the  trial  sul)- 
mitted  that  there  was  no  evidence  to  go  to  the  iurv  tiiat  the 
notice  was  one  within  the  meaning  of  the  Wliiteboy  Act,  as 
alleged  in  the  indictment.  In  my  opinion  there  was  evidence 
that  the  notice  was  not  onlv  cajiable  of  bearing  the  meaning 
put  on  it  by  the  crown,  but  that  it  had  plainly  that  meaning, 
and  on  that  point  1  am  of  opinion  that  the  conviction  should 
be  upheld.  Put  the  counsel  for  the  crown  asked  this  case  to 
be  withdrawn  from  the  jury,  and  it  Avas  accordingly  with- 
drawn. Now  I  am  of  opinion  that  such  a  course  should  not 
have  been  pursued;  that  the  jurisdiction  of  the  judge  was  only 
to  determine  whether  the  document  was  capable  of  bearing 
the  meaning  assigned  to  it,  and  then  it  was  for  the  jury  to  say 
whetiier  under  the  circumstances  it  had  that  mcan'nir  or  not. 
The  conviction  must  be  quashed. 

Solicitor  for  the  prisoner,  Moran. 
Solicitor  for  the  ci'own,  T.  Gcrrard. 


BcnOLARY 

1.  Under  t 

titatuti' 
ciinu'  II 
or  Iniiltl 
it  iciul 

wluitl'VI 

iTiiiic  w 

2.  ISDICTME 

tliu  owi 
tt'iiant. 
hours  Ik 
liittor  ill 

Appeal 
County. 

Jam  CM  I) 
liohei't  J 

Bm.KNAl' 

ing  in  wlii( 
of  the  crini 
building," 
sense  at  ( 
declared  tl 
house,  or 

p.«;o.   Th 

dwelling-li 
ever."  St 
the  statute 
reyai'dless 
U  (  al.,  2 
statute  wa 
As  to  th 
dictment, 
the  posses 
the  comm 
proof  sho 


STATE  V.  DAN.  00 

State  v.  Dan. 

(18  Nev.,  345.) 

BUKGLARY  UXDEK  STATUTE  AND  AT  COMMON  LAW:  Inhabitancy  of  build- 
ing —  Owner  —  Tenant — Variance. 

1.  Under  the  statute  and  at  common  law.—  The  words  in  the  Nevada 

stiituti'  as  originally  adopted,  relative  to  burglary,  declaring  that  that 
criiiu'  may  be  eoinniitted  in  any  "dwelling-house,  or  any  otlier  house 
or  luiiiding  whatever,"  the  amendment  to  the  original  statute  making 
it  read  "any  dwelling-house  or  tent,  or  any  other  house  or  building 
wliiitiver,"  does  not  alFeet  the  law  of  Nevada  so  far  as  to  bring  the 
crime  within  the  common-law  deiinition. 

2.  Indictment  —  Immaterial  allegation. — The  indictment  having  named 

the  owner  of  the  hoiise,  the  naming  therein  also  of  another  person  as 
tenant,  wheii  iis  a  fact  th(>  tenant  had  surrendered  the  premises  a  few 
hours  before  the  commission  of  the  crime,  is  not  a  fatal  defect.  The 
latter  allegation  was  immaterial. 

Appeal  from  the  Second  Judicial  District  Court,  Ormsby 
County. 

James  I).  Ton'cijsim,  district  attorney,  for  respondent. 
Itohei't  M.  Clarh',  for  appellant. 

l)i;i,KNAi>,  J.  At  the  common  law,  inhabitancy  of  the  build- 
ing in  wliich  the  offense  was  committed  was  one  of  the  tests 
of  tlio  crime  of  bnrj^lary.  It  is  said  that  the  words  "  house  or 
biiildiii;:',"  in  section  2?A\7i  of  the  crimes  act,  are  used  in  the  same 
sense  at  common  hiw.  Our  statute,  as  originally  adopted, 
docliired  that  the  offense  may  be  committed  in  any  "dwelling- 
lioiiso,  or  any  otlier  house  or  buildino^  whatever."  St.  ISOl, 
J).  <>().  Tlie  statute  was  amended  in  ISO!)  so  as  to  read,  "any 
dwelling-liouse  or  tent,  or  any  other  house  or  building  what- 
ever." St.  ISOO,  ]).  05.  In  its  original  form  the  language  of 
the  statute  was  broad  enougli  to  include  buildings  of  any  kind, 
reyaidloss  of  the  fact  of  inhabitancy.  People  v.  iSficl'Diaiiy 
3A  ( "a!.,  L'ir».  It  cannot  be  pretended  that  the  scope  of  the 
statute  was  restricted  by  tlie  amendment. 

As  to  the  (luestion  of  a  variance  between  the  proof  and  the  in- 
dictment, arising  from  the  fact  that  the  tenant  had  surrendered 
the  possession  of  the  house  to  the  landlord  a  few  hours  before 
the  ooMimission  of  the  burglary,  we  think  it  cannot  avail.  The 
proof  shows  the  offense  to  have  been  committed  in  the  house 


91 


AMERICAN  CRIMINAL  REPORTS. 


of  Joseph  Olcovich,  as  charged  in  the  indictment.  The  allega- 
tion that  the  house  was  occupied  by  Sadie  Kay,  as  lessee  of 
Olcovich,  was,  under  the  facts,  immaterial,  and  could  perform 
no  other  oflice  than  to  further  identify  premises  already  suffi- 
ciently described.     Com.  v.  Rcijiwhls,  122  Mass.,  454;  Andrews 

V.  State,  48  Ala.,  CCS. 

Jxidgment  and  order  affirmed. 


Mn.r.ER  V.  The  Static. 

(16  Texas  Ct.  App.,  417.) 

Burglary  and  theft:  Indictment. 

Dt'PLICITY  OF  INDICTMENT  —  BURCILARY   AND  THEFT. —  It   IS  nO  objection 

to  an  iiidiftinent  that  it  charges  both  burglary  and  theft,  but  a  convic- 
tion cannot  be  had  for  btith  offenses  wlien  tlius  charged  in  tlie  same 
indictment,  nor  can  a  separate  punishment  bo  assessed  for  eacli,  nor  a 
joint  punisluiient  a.ssessed  for  lK)th. 

Appeal  from  the  District  Court  of  Bell.  Tried  below  before 
the  Hon.  li.  W.  Rimes. 

The  indictment  charged  the  ap]>ellant  with  the  burglary  of, 
and  theft  from,  the  house  of  one  G.  W.  Klotts,  in  Bell  county, 
Texas,  on  the  27tli  day  of  January,  18S+.  lie  was  found  guilty 
as  charged  in  the  indictment,  and  was  awarded  a  term  of  two 
years  in  the  penitentiary  as  ])unishment. 

Ko  brief  for  the  appellant  has  reached  the  Reporters. 
J.  II.  Hurts,  assistant  attorney-general,  for  the  state. 

"WiLLsoN,  J.  The  indictment  charges  burglary  with  intent 
to  commit  theft,  and  also  charges  theft  of  property  of  loss 
value  than  $20.  By  the  charge  of  the  court,  the  question  as  to 
the  burglary  was  alone  submitted  to  the  jury.  The  verdict  of 
the  jury  found  the  defendant  "  guilty  as  charged  in  the  indict- 
ment."' The  judgment  of  the  court  considered  and  adjudged 
him  guilty  of  "  robbery."  lie  was  sentenced  to  imprisonment 
in  the  penitentiary  for  a  term  of  two  years  for  "  theft  and 
burglary." 

It  is  no  objection  to  an  indictment  that  it  charges  both  burg- 


lary and  th 
Code  Crim. 
App.,  330. 
thus  charg 
inent  asses! 
both?  AVe 
court  said 
it  clear  tha 
that  no  ju( 
such  a  case 
subsequent 

In  the  ca 
is,  the  indie 
ant  guilty 
intention  o 
lary  alone, 
scribed  by 
of  the  ven 
warranted  i 
of  tlie  defei 
to  the  jury 
not  confori 
ant  is  sento 

AVe  inigl 
tain  in  the 
proceeding 
could  not  11 
tion  to  be  1 
tliiit  it  was 
make  the  j 
lary  and  t! 
of  l)oth  tho 
ment  and  i 
errors  may 


Note.— Se 
case.    See,  u 


MILLER  V.  THE  STATE. 


m 


larv  and  tlioft.  Jlonmril  v.  The  State,  8  Texas  Ct.  App.,  447; 
Code  Crini.  Proc,  art.  714;  Dunham,  v.  The  State,  9  Texas  Ct. 
App.,  !53U.  ]'ut  can  a  conviction  be  had  for  both  offenses  when 
thus  cliar<^ed  in  the  same  indictment,  and  a  separate  punish- 
ment assessed  for  each,  or  a  joint  punishment  assessed  for 
both?  We  tliink  not.  In  JFoauinl  v.  The  State,  supra,  this 
court  said:  "  If  both  are  charged  in  one  indictment,  we  think 
it  clear  tliat  the  theft  wouUl  be  included  in  the  burglary,  and 
that  no  judgment  could  be  rendered  for  the  theft.  And  in 
such  a  case  the  conviction  for  burglary  would  be  a  bar  to  a 
subsequent  prosecution  for  theft." 

In  the  case  before  us  the  conviction  is  for  loth  offenses;  tliat 
is,  the  indictment  charges  hath,  and  the  verdict  finds  the  defend- 
ant guilty  as  charged  in  the  indletment.  It  was,  perhaps,  the 
intention  of  the  jury  to  find  the  defendant  guilty  of  the  burg- 
lary alone,  as  the  punishment  assessed  is  the  mlnitiinni  pre- 
scribed by  tlie  law  for  that  offense,  and  yet  the  plain  language 
of  the  verdict  includes  both  offenses.  This  verdict  was  not 
Avarrantod  either  by  the  charge  of  the  court,  because  the  issue 
of  tlie  defendant's  guilt  of  the  theft  charged  was  not  submitted 
to  the  jury  by  the  charge.  Again,  while  the  judgment  does 
not  conform  to  the  verdict,  the  sentence  does,  and  the  defend- 
ant is  sentenced  for  both  burglary  and  theft. 

"We  might  reform  the  judgment,  if  there  was  anything  cer- 
tain in  the  verdict  by  which  we  could  do  so;  but  we  would  be 
proceeding  upon  uncertainties  were  w'e  to  undertake  it.  We 
could  not  make  the  judgment  and  sentence  declare  the  convic- 
tion to  bo  for  bui'glar^'^  when  the  verdict  and  sentence  declare 
that  it  was  for  burglary  and  theft  together.  We  could  not 
make  the  judgment  adjudge  the  defendant  guilty  of  both  burg- 
lary and  theft,  because  he  cannot  be  legally  adjudged  guilty 
of  Ijoth  these  offenses  in  this  case.  We  must  reverse  the  judg- 
ment and  remand  the  cause  for  a  new  trial,  in  order  that  these 
errors  may  be  corrected. 

Reversed  and  remanded. 

Note.— See  Tohbi  v.  The  People,  4  Am.  Cr.  R,,  p.  653.  and  notes  to  that 
case.    See,  also,  The  State  v.  Martin,  id.,  86. 


Ji '       • 


1^  \[::^-:: 


.1  ;      (1  , 


■f. 


AMERICAN  CRIMINAL  REPORTS. 


Pells  v.  The  State. 

(20  Florida,  774.) 

Bceglary:  Breaking  and  entering  with  intent  — Indictment  — Name  of 

owner  of  building. 

1.  An  indictment  cHAnoixo  that  the  accused  broke  and  entered,  with 

intent  to  commit  a  felony,  "a  certain  building,  to  wit,  the  main  ex- 
hibition building  of  *hj  Middle  Florida  Agricultural  and  Mechanical 
Fair  Association,'  is  fatally  defective  in  not  alleging  tliat  the  building 
is  the  property  of  a  corporation  or  persons. 

2.  Ownership  of  the  building.  —  The  rule  is  well  settled  that  the  owner- 

ship of  the  building  so  burglariously  entered  must  be  alleged  in  the 
indictment. 

"Writ  of  error  to  the  Circuit  Court  for  Leon  County. 

This  case  was  heard  before  Judge  Yann,  of  the  third  circuit, 
presiding  in  Leon  county.  The  other  facts  are  stated  in  the 
opinion. 

Ji.  B.  Hilton,  John  W.  Mitchell  and  John  S.  Beard,  for 
plaintiff  in  error. 

The  Attorney- General,  for  the  state. 

Mr.  Justice  Van  Valkenburgu  delivered  the  opinion  of  the 
court : 

In  November,  1SS2,  the  grand  jury  of  Leon  county  found 
an  indictment  against  AVilliam  Pells,  charging  that  he,  on  the 
12th  day  of  January,  A.  I).  ISSl,  "  with  force  and  arms  at 
and  in  the  county  of  Leon  aforesaid,  a  cei'tain  budding,  to  wit, 
the  main  exhibition  building  of  the  Middle  Florida  Agricult- 
ural and  ^[echanical  Fair  Association,  there  situated,  in  the 
night-time  of  said  day,  to  wit,  at  about  the  hour  of  9  o'clock 
at  night,  feloniously  and  burglariously  did  break  and  enter 
with  intent  to  commit  a  felony,  to  wit,  to  steal,  take  and  carry 
away  goods  and  chattels  of  the  value  of  more  than  ^20,"  etc. 
The  defendant  was  tried  and  found  guilty.  He  moved  for  a 
new  trial  upon  several  grounds,  among  which  was  that  "  there 
was  no  evidence  before  the  jury  to  show  the  ownership  of  the 
building  into  which  the  breaking  and  entry  are  alleged  to  have 
been  made.  It  was  not  shown  to  liave  been  the  property  of 
any  individual  or  individuals  or  of  any  corporation,  and  Avas 
conceded  by  the  state  attorney  not  to  have  been  the  property 


.      A 


of  a  corpora 
Ida."  TIkmu 

The  defen( 
of  judgment 
necessary  to 
motion  for  a 

"That  the 
said  building 
owners  there 

'•  That  sai< 
Iniilding  to  h 

The  motioi 
iuit  brings  hi 

The  indicti 
should  have 
which  the  bu 
\m  of  the  ]\l 
Association." 
stated.  Thei 
porated.  If 
individuals  co 
several  names 
owners.  If  t 
f(W'ifi(t  but  tl 
.ui'  ■  •  i!>at  h 
rs''..  "  i;!!  ^c 
i;  MsAy  cnt 
of  t'ie  (Iwelli 
and  entered  r 
Law,  4;j<;  ;  1  J 
L,  sec.  SIC; 
'•.  FocMrr,  22 
h('i>  V.  State  < 
Wis.,  .580;  C(, 

The  indictr 
raent  is  arrest 
from  impriso 
lierein. 

Vol.  V- 


PELLS  r.  THE  STATE. 


m 


of  a  corporation,  but  of  the  people  living  all  overmidtUe  Flor- 
ida." Tiio  motion  was  denied  and  the  defendant  duly  excepted. 

Tlie  defendant,  by  his  counsel,  then  made  a  motion  in  arrest 
of  judgment  on  several  grounds,  the  only  ones  of  which  it  is 
necessary  to  consider  are  similar  to  the  one  above  noted  in  the 
motion  for  a  new  trial,  viz. : 

"That  the  said  indictment  does  not  allege  the  ownership  of 
said  building,  and  does  not  set  forth  the  name  of  any  owner  or 
owners  tiiereof." 

"  That  said  indictment  does  not  allege  the  ownership  of  said 
l)uilding  to  have  been  in  any  coi-jxn'iition."' 

Tiie  motion  in  arrest  of  ju<lgment  was  denied  and  the  defend- 
ant brings  his  writ  of  error. 

The  indictment  is  bad,  and  tlie  motion  in  arrest  of  ju<lgment 
siiould  have  been  granted.  It  coiitiiins  i)ut  a  single  count,  in 
wliich  the  building  is  described  as  "tlK^  main  exhil)ition  build- 
in  <>•  of  the  ]\riddle  Florida  Agricult4iral  and  Mechanical  Fair 
Association,"  The  ownership  of  the  property  is  defectively 
stated.  There  is  no  allegation  that  such  association  is  incor- 
porated. If  it  belonged  to  an  unincorporated  association,  the 
individuals  comprising  such  as.sociation  are  the  owners,  and  their 
several  names  should  have  appeared  in  the  indictment  as  such 
owners.  If  the  ownership  of  the  ])roperty  is  not  stated,  non. 
'•/)<>  sA7!?  hut  that  the  building  was  the  i)i'operty  of  the  defend- 
.ih.'  •  ''»at  he  was  part  owner  as  one  of  tlie  association.  The 
ri',  -li  ciottled  that  the  ownershij)  of  the  building  so  bur- 

!:  Ui-iV  entered  must  be  alleged.  "The  name  of  the  owner 
of  the  dwelling-house  or  of  the  building  which  was  broken 
and  entered  must  be  stated  with  accuracy."'  Heard's  Criminal 
Law,  4r'4u;  1  Bishop  on  Crim.  Proc,  sec.  583;  1  Wharton, Crim. 
L,  sec.  SlO;  Bealcv.  The  IStatt\  y.)  Ala..  4(J(»;  State  t>f  Kanms 
V.  FocMir,  22  Kan.,  542;  State  r.  Moi-rUsej/,  22  Iowa,  15S;  Waf- 
hcev.  State  of  Illinois,  m  111.,  451;  Joehsoii  v.  The  State,  55 
Wis.,  589;  Com.  v.  Ferris,  108  Mass..  I. 

The  indictment  in  this  case  is  fatally  defective,  and  the  judg- 
ment is  arrested  and  the  defendant  is  ordered  to  be  discharge<l 
from  imprisonment  on  the  indictment,  judgment  and  sentence 
herein. 

Vol.  V— 7 


AMERICAN  CRIMINAL  REPORTS. 


Scott  v.  The  State. 

(62  Miss.,  781.) 

BuBaLARY:  Dwelling-houae. 

A  house  which  the  owner  visits  once  or  twice  a  year,  and  in  which,  dur- 
ing his  visits,  he  sleeps  and  eats  for  about  a  week,  but  whioli  at  all 
other  times  is  unoccupied  by  any  person,  is  not  a  "  dwelling-house," 
the  "  breaking  and  entering"  of  which,  when  no  one  is  therein,  "  with 
intent  to  commit  a  crime,"  is  "burglary"  under  section  2738  of  the 
code  of  1880. 

Appeal  from  the  Circuit  Court   of  Washington  County. 
Hon.  B.  F.  Trimble,  judge. 

W.  II.  Smith,  for  the  appellant. 

T.  S.  Ford,  attorney-general,  for  the  state. 

Arnold,  J.,  delivered  the  opinion  of  the  court : 
The  building  as  described  hy  the  testimony  was  not  a  dwell 
ing-house  in  legal  contemplation.  To  render  a  building  a 
dwelling-house  it  must  be  a  habitation  for  man,  and  usually 
occupied  by  some  person  lodging  in  it  at  night.  A  building 
which  is  in  fact  a  dwelling-house  does  not  lose  its  character  as 
such  by  a  mere  temporary  absence  of  its  inhabitants  who  have 
left  with  intent  to  return,  but  it  does  not  become  a  dwelling- 
house,  though  used  for  taking  meals  and  other  purposes,  unless 
the  person  occupying  it  or  some  one  of  his  family  or  servants 
usually  sleep  in  it  at  night,  Bish.,  Stat.  Crimes,  sec.  270 ;  Ju 
parte  Vincent,  26  Ala.,  145 ;  State  v.  Warren,  33  Maine,  30. 


The  State  v.  Hecox. 

(83  Mo.,  531.) 

BuRaLARY :  Breaking  —  Cu  rtilage  —  Indictment  —  Instructions. 

1.  CuRTii^GE,  as  used  in  the  statute  in  relation  to  burglary  (R.  S.,  sec.  1297), 

means  an  inclosed  space  immediately  surrounding  the  dwelling-house 
and  contained  within  the  same  inclosure. 

2.  Burglary  op  granary.— Under  an  indictment  (R.  S.,  sec.  1297)  for 

burglary  of  a  granary  in  which  there  were  goods  and  valuable  things. 


and  larce: 
within  tli€ 

3.  Indictment 

for  l)otIi  b 
he  will  be 
property  s 

4.  Larceny  — 

place  in  a  i 
cient  aapoi 
pose  of  stt 

5.  What  is  a  i 

and  fasten 
constitute 
property,  £ 
belonged. 

6.  Lnstructio! 

unless  giv« 
determine 

Appeal  fro 

Ilagerman. 
D.  IL  Mel 

Black,  J. 
defendant  wi 
certain  buildi 
Boyle,"  etc. 
charged  him 
of  the  value 
The  evidence 
Boyle's  farm 
by  a  fence ;  \ 
family  purpos 
that  the  gran 
implements, } 
by  a  chain  at 
side  wall ;  an 
inside.  A  wi 
that  before  si 
when  he  wen 
he  went  to  tli 
fastened  the  ( 
he  ran  to  the 


THE  STATE  v.  HECOX.  flOf 

and  larceny  therein,  it  is  immaterial  whether  or  not  the  granary  is 
within  the  curtilage  of  the  dwelling-house. 

3.  Indictment. —  Wliere  one  is  tried  on  an  indictment  containing  counts 

for  lx)tli  burglaiy  and  larceny,  and  is  acquitted  of  the  burglary  only, 
lie  will  be  guilty  of  grand  or  petit  larceny  according  to  the  value  of  the 
property  stolen. 

4.  Larceny  —  Sufficient  asportation.— The  taking  of  wheat  from  its 

place  in  a  granary  and  filling  it  into  sacks  and  tying  the  latter  is  a  suffi- 
cient aaporation  to  constitute  larceny,  if  done  with  the  felonious  pur- 
pose of  stealing  the  wheat. 

6.  What  is  a  sufficient  breaking.— The  opening  of  a  door  which  is  closed 
and  fastened  with  a  cliain  hooked  over  a  nail  is  a  sufficient  breaking  to 
constitute  burglary,  if  done  with  the  intent  to  steal  and  carry  away 
projKirty,  and  is  followed  by  an  entry  of  the  building  to  which  the  door 
belonged. 

6.  Instructions. —  Instructions  which  assume  material  facts  are  erroneous, 
unless  given  in  connection  with  another  which  leaves  it  to  the  jury  to 
determine  whether  the  assumed  facts  are  true. 

Appeal  from  Clark  Circuit  Court. 

JIagerman,  McCrary  <j&  Ilagerman,  for  appellant. 
D.  U.  Mclntire,  attorney-general,  for  respondent. 

Black,  J.  The  first  count  of  the  indictment  ciiarged  the 
defendant  with  breaking  and  entering,  on  October  1.5,  1878, "  a 
certain  building,  that  is  to  say  a  certain  granary  of  Archibald 
Boyle,"  etc.  The  second  was  like  the  first,  and  in  addition 
charged  him  with  stealing  three  and  one-i;alf  bushels  of  wheat 
of  the  value  of  $3.  He  was  found  gt'.llty  of  both  charges. 
Tiio  evidence  tended  to  show  that  tho  granary  was  inside  of 
Boyle's  farm  lot,  and  sej)arated  from  the  dwelling-house  yard 
by  a  fence ;  tluit  there  was  a  well  in  the  farm  lot,  used  for . 
family  purposes,  which  was  reached  by  a  gateway  in  the  fence; 
that  the  granary  was  used  for  storing  wheat,  tobacco  and  farm 
implements,  and  had  a  door  on  one  side,  which  was  fastened 
by  a  chain  attached  to  tho  door  and  hooked  upon  a  nail  in  the 
side  wall;  and  a  window  on  the  other,  which  opened  from  the. 
inside.  A  witness  who  lived  with  Bo^de  testified  in  substance, 
that  before  supper  he  was  in  the  granary  and  fastened  the  door 
when  he  went  out ;  that  afterwards,  between  7  and  8  o'clock, 
he  went  to  the  well  and  there  saw  the  door  move ;  that  he  then 
fastened  the  door,  and  on  discovering  that  some  one  was  inside 
he  ran  to  the  house,  got  a  gun,  went  back,  and  demanded  of  tht 


-  I  ■ 

.''  j 


f    i 


'sir         ;     •.rL<ii 


f^^r^ 


100 


AMERICAN  CRIMINAL  REPORTS. 


person  on  the  inside  to  make  himself  known ;  that  the  defend- 
ant was  there  endeavoring  to  get  out  of  the  window,  and 
begged  of  the  witness  not  to  inform  on  him,  for  he  was  hard 
up.  Two  sacks  were  found  in  the  granary  partly  filled  with 
wheat  and  tied  up.  There  was  evidence  tending  to  show  that 
defendant  borrowed  these  sacks  from  a  mill  in  the  vicinity,  and 
on  tlie  other  hand  there  was  evidence  tending  to  show  that 
Boyle  borrowed  these  sacks  from  a  neighbor. 

There  was  also  evidence  to  the  effect  that  the  defendant  was 
at  the  house  of  one  Hughes,  some  five  miles  distant,  when  the 
burglary  was  said  to  liave  been  committed. 

I.  It  was  urged  below  and  is  insisted  here,  that  the  first  count 
of  the  indictment  charged  no  offense  known  to  the  law,  because 
the  granary  was  within  the  curtilage  of  the  dwelling-house  and 
is  not  so  described,  and  that  the  second  count  only  charged  the 
defendant  with  petit  larceny.  It  is  true  that  the  statute  now 
(sec.  1297,  K.  S.)  limits  the  common  law  definitions  of  a  dwell 
ing-house,  as  was  undei'stood  in  tliis  cbiss  of  cases,  by  provid- 
ing that  no  building  shall  l)e  deemed  a  dwelling-house,  or  any 
partof  adwelling-house,  .  .  .  unless  the  same  "be  joined  to, 
immediately  connected  with,  and  is  a  part"  thereof.  Section 
129S  declares ''every  person  who  shall  be  convicted  of  break- 
ing and  entering  —  First,  any  building  withii>the  curtilage  of 
a  <lwelling-house  but  not  forming  a  pai't  thereof ;  or  second,  any 
shop,  store,  booth,  tent,  warehouse  or  other  building  .  .  . 
in  which  there  shall  be,  at  the  time,  some  human  being,  or  any 
goods,  wares,  merchandise  or  other  valuable  things  kept  or  de- 
]>osited,  with  intent  to  steal  or  commit  any  felony  therein, 
shall  on  conviction  be  adjudged  guilty  of  burglary  in  the  second 
degree." 

The  argument  is  that  the  first  clause  of  this  section  embraces 
all  those  out-buildings  formerly  regarded  as  part  of  the  man- 
sion, and  that  they  are  not  included  in  the  second  clause.  At 
common  law  the  dwelling-house,  in  which  burglar}'  might  be 
committed,  was  held  to  include  the  out-houses,  such  as  ware- 
houses, barns,  stables,  cow-houses,  or  dairy  houses,  though  not 
under  the  same  roof,  pi'ovided  they  were  parcel  thereof.  4 
Black.  Com.,  225;  1  Hale,  P.  C,  553;  2  Russell  on  Crimes  (9th 
ed.),  15. 

In  determining  what  buildings  were  under  the  protection  of 


THE  STATE  v.  HECOX. 


tm 


the  mansion  house,  it  was  important  to  determine  whetlit**  they 
were  within  the  curtilage,  or  same  common  inclosure,  br.t  this 
was  not  the  only  criterion;  for  if  within  the  curtilage,  and  a 
distinct  structure  used  for  purposes  not  connected  with  house- 
keeping, thoy  were  not  j)arcel  of  thenumsion.  A /•mow  v.  Tlw 
State, ;]  Ilunipli.,  ."»7!>.  So,  "  if  the  out-houses  be  adjoining  the 
<i\veliing-housi!  and  occupied  as  parcel  thereof,  though  there  he 
no  conunon  inclosure  or  curtilage,  they  will  be  regarded  as 
part  of  tiie  mansion  house."     2  East,  1*.  C,  492. 

The  elements  of  proximity  and  use  wore  equally  important 
in  determining  when  an  out-house  was  to  be  regarded  as  parcel 
of  the  mansion.  1  Wharton,  Crim.  J^aw  (8th  ed.),  783;  Bishop 
on  Stat.  Crimes,  sees.  283,  2.s»!. 

The  (piestions,  therefore,  still  remain  in  the  applications  of 
our  statute,  what  is  to  be  understood  by  tlie  curtilage.  Toraliu 
and  Jacobs,  in  their  law  dictionai'ies,  do  not  allow  the  elements 
of  inclosure  to  enter  into  the  delinition,  but  in  liouvier's  1-aw 
Dictionary  the  delinition  given  is,  "tiio  inclosed  space  immedi- 
ately surrounding  a  dwelling-house  contained  within  the  same 
inclosure;"  so  also  "a  yard,  court-yard,  or  piece  of  ground 
lying  near  to  a  dwelling-house,  and  inclosed  within  the  same 
fence."  Burrill's  Law  Die;  Webster's  J)ic.  It  is  in  this  sense 
the  word  is  used  in  our  statute.  See,  also,  Commonwealth  v. 
/.Wv^ty,  10  Cush., -1:80;  People  v.  J\i/7,e/\  4  Johns.,  424;  Peo- 
ple v.  Gedne;/,  17  N.  Y.  Sup.  Ct.,  151. 

There  is  another  view  of  this  case  which  must  dispose  of 
tliese  questions  as  they  are  presimted  upon  this  indictment. 
The  sections  of  the  statute  above  quoted  became  a  part  of  the 
Criminal  Code  of  this  state  by  the  act  of  March  20,  1835. 
There  it  was  necessary  that  the  breaking  and  entering  should 
have  been  done  ''in  the  night-time,"  and  another  section  made 
it  burglary  to  do  a  like  act  in  the  day-time.  In  the  revision  of 
1855,  these  words  were  omitted,  and,  as  a  consequence,  the 
section  also,  with  respect  to  burglary  in  the  third  degree.  A 
consideration  of  these  statutes  will  show  that  the  words  "  in 
which  there  shall  be,"  etc.,  are  descriptive  of  the  buildings  and 
structures  mentioned  in  the  second  subdivision  of  section  1298, 
and  do  not  apj)ly  to  those  in  the  first.  This  must  be  so ;  for,  as 
we  have  seen,  the  buildings  and  structures  specifically  men- 
tioned in  the  second  part  of  that  section  may  be,  and  often 


tm 


AMERICAN  CRIMINAL  REPORTS. 


are,  within  the  curtilage.  It  is  therefore  immaterial,  in  this 
case,  whether  the  granary  was  or  was  not  within  the  curtilage 
of  the  dwelling-house.  This  result  is  in  harmony  with  the 
former  rulings  of  this  court  {State  v.  Ilenlei/,  30  Mo.,  509; 
and  State  V.  Dooki/,  G  ^lo.,  UO);  though  the  questions  now 
urired  were  not  there  considered. 

2.  This  cause  was  tried  on  the  theory  that  if  defendant  was 
found  guilty  of  larceny,  he  must,  also,  be  found  guilty  of  burg- 
lary. In  other  words,  the  larceny  charged,  and  for  which 
alone  he  could  be  convicted,  was  incidental  to  the  burglary. 
This  was  a  mistaken  view  of  the  law.  They  are  two  distinct 
offenses  though  joined  in  the  same  indictment  on  dilTcrent 
counts.  State  v.  Kdsoe,  70  Mo.,  50.> ;  State  v.  Martin,  70  Mo,, 
337;  State  v.  Owens,  79  Mo.,  020.  If  acquitted  of  burglary 
and  found  guilty  of  larceny,  the  larceny  would  be  grand  or 
petit,  according  to  the  value  of  the  property  stolen.  State  v. 
Barker,  64  Mo.,  282.  The  jury  were  properly  informed  as  to 
what  their  verdict  should  be  if  they  found  the  defendant 
guilt}"^  of  burglary,  and  if  they  found  him  guilty  of  both  burg- 
lary and  larceny,  but  they  should  have  been  further  told  that 
they  could  acquit  of  burglary  and  find  defendant  guilty  of 
larceny;  in  which  event  the  hu'ccny  would  be  petit  larceny 
only  under  this  indictment. 

3.  The  first  instruction  given  at  the  instance  of  the  state  wa.s 
not  objectionable  for  any  of  the  reasons  urged.  It  simply 
pointed  out  the  offenses  with  which  defendant  was  charged, 
using  substantially  the  language  of  the  indictment,  omitting 
the  name  only.  It  was  not  intended  to  be  an  instruction  in 
forming  the  jury  what  facts  they  must  find  in  order  to  find 
him  guilty.    The  fourth  and  fifth  instructions  were  as  follows; 

''  ith.  The  taking  of  wheat  from  its  place  in  the  granary  and 
filling  the  same  into  sacks,  and  the  tying  of  the  sacks  so  con 
taining  such  wheat,  is  a  sufficient  carrying  away  to  constitute 
larceny  within  the  meaning  of  the  indictment,  if  such  acts  be 
done  with  the  felonious  and  unlawful  purpose  of  stealing  such 
wheat. 

"  nth.  The  opening  of  a  door  which  is  closed  and  fastened 
with  a  chain  hooked  over  a  nail  ir  a  sufficient  breaking  to 
constitute  burglary  within  the  ir.fiuang  of  this  indictment,  pro- 
vided such  breaking  is  done  wi:h  the  intent  to  steal  and  carry 


THE  STATE  v.  HECOX. 


103 


away  property,  and  is  followed  by  an  entering  of  the  building 
to  whicli  such  door  belonged." 

As  definitions  of  what  would  constitute  a  sufficient  breaking 
and  carrying  away,  they  are  not  objectionable,  and  might  well 
have  been  given  in  connection  with  an  instruction  which  left 
it  to  the  jury  to  determine  whether  the  facts  assumed  were 
true,  but  it  was  error  to  submit  the  most  material  facts  in  this 
way  only,  by  assuming  the  testimony  with  respect  thereto  to 
be  true.  The  court,  at  the  instance  of  the  state,  gave  a  gen- 
eral instruction  as  to  reasonable  doubt,  and  another  at  the  in- 
stance of  the  defendant  of  which  he  cannot  complain;  these 
covered  the  entire  cause,  and  the  court  did  not  err  in  refusing 
to  instruct  that  if  the  evidence  touching  an  alibi  was  sufficient 
to  raise  a  reasonable  doubt  of  guilt,  the  jury  should  acquit. 
The  first,  second  and  sixth  asked  by  the  defendant  were  also 
properly  refusetl. 

The  point  now  made  as  to  proof  of  the  venue  will  not  be 

overlooked  on  another  trial. 

Reversed  and  remanded. 


Note. — The  forpgoing  opinion  does  not  go  into  a  very  extensive  discussion 
of  tlie  meaning  at  common  law  of  the  plirjuse  "  within  the  curtilage  of  a 
dwelling-iiouse,"  but  the  learned  judge  contents  himself  with  stating  the 
sense  in  wliich  it  is  used  in  the  Missouri  statute. 

The  Missouri  statutes  (Rev.  1879)  are  in  substance  as  follows : 

Section  121  makes  it  burglary  in  the  first  degree  to  break,  etc.,  any  dwell- 
ing-house. 

Section  1292  provides  that  no  building  shall  he  deemed  part  of  the  dwell- 
ing-house unless  it  "  be  joined  to,  immediately  connected  with  and  is  part 
of  a  dwelling-house." 

Section  1298,  providing  for  burglary  in  the  second  degree,  is  set  out  in  the 
opinion. 

Section  1301  provides,  where  burglary  and  larceny  are  committed  together, 
the  two  can  be  charged  as  one  crime. 

The  contention  of  appellant  was,  that  under  the  facts  the  granary  de- 
scribed in  the  indictment  was  within  the  curtilage  of  the  dwelling-house, 
which  crime  not  being  charged,  the  judgment  should  have  been  arrested. 

The  court  denied  this  position,  holding  that  the  building  must  be  in  the 
same  inclosuie  iis  the  dwelling  to  be  within  the  meaning  of  the  first  clause 
of  section  1298,  aforesaid.  At  common  law,  and  especially  as  adapted  to 
this  country,  the  rule  seems  to  be  different. 

Bishop's  Stat.  Crimes  (2d  ed.),  §  286,  treats  of  this  subject,  and  adopts  the 
view  that  the  question  is  not  neceSvSarilj'  controlled  by  a  common  inclosure ; 
that  where  there  is  none  it  then  depends  upon  the  proximity  and  use :  that 
the  building  must  be  within  a  convenient  distance  to  the  dwelling  and 


104 


AMERICAN  CRIMINAL  REPORTS. 


serviceable  in  respect  to  abode.  This  test  is  adopted  by  other  writers.  ;j 
Greenleaf  on  Ev.  (Redf.  ed.),  §  80;  Pliillips,  Mech.  Liens,  201;  Tonilins 
Diet.  (1st  Am.  ed.),  491 ;  Abbott's  Law  Diet.,  173 ;  State  v.  Shaw,  31  Me.,  523; 
2  bish.  Crim.  Law  (6tli  ed.),  104. 

In  State  v.  Whet,  4  Jones  (N.  C),  349.  a  snioke-liouse  twenty-five  yards 
from  the  liouse,  nsed  for  storing  meat  for  the  use  of  the  dwelling,  although 
not  in  a  oomraon  inolosurc,  was  held  to  be  within  the  curtilage;  and  in 
State  I'.  Twitti/,  1  Ilayw.,  1(V>,  it  was  said  that  tlie  curtilage  was  "a  iiieceof 
gi'ound  either  inclosed  or  iiot,  that  is  commonly  used  with  the  dwelling- 
Jiouse." 

In  Cantle's  Case,  1  Hale,  P.  C.  (1st  Am.  ed.),  558,  it  appeared  that  the  [iris- 
oner  brolte  into  a  privy  several  yards  back  of  the  dwelling  with  a  pali-  fence 
.separating  them.  In  Jie.v  r.  Cliii/biirii,  Russ.  &  Ily.,  300,  the  jiri.soner  liroki 
into  a  goose  iiouse  in  a  different  yard  from  the  dwelling,  but  coniictteil 
tlierewith  by  a  gate,  and  used  lur  domestii-  purj)oses.  In  A'c.f  v.  Chdlkimj. 
a  stable  and  (•(jueh  hou.sc  iti  a  diireront  yard  but  lea<liiig  into  the  hmisi'  lot. 
In  each  of  these  cases  the  burglarized  building  was  held  to  be  within  \]\f 
curtilage.  A  majority  of  the  court  held  the  same  way  in  lie.v  r.  IhtrroirK,  R. 
&  M.  C.  C.  R..  374,  where  a  wash  house  was  wholly  disconnected  from  tin- 
building  except  that  it  was  used  for  domestic  purjioses. 

In  Regina  v.  Gilbert,  1  Car.  &  K.,  .S4,  the  building  was  in  a  fold  yiird  1k- 
longing  to  tlie  prosf cutor's  farm,  and  used  as  one  of  the  farm  builiiiii;,'\ 
Held  to  be  within  the  curtilage.  In  Armour  v.  State,  3  Humph.,  3T!l.  iiiiil 
State  V.  Felcher,  10  Lea,  338,  it  wiw  held  that  the  phrase  included  all  ijiiilil- 
ings  appurtenant  to  tlie  dwelling,  such  as  the  kitchen,  laundry,  smokc-lumsv 
and  dairy.  This  seems  to  be  the  rule  in  two  other  states,  tliough  more  strfs> 
is  laid  on  the  use  in  connection  with  the  dwelling.  Iveij  v.  State,  (II  Ala., 
m-,  Bi-yant  v.  State,  60  Ga.,  358. 

The  most  Illustrative  and  best  reasoned  cases  are,  liowever,  from  Miclii;;iiii. 
In  Peojjle  v.  Taylor,  2  Mich,,  251,  a  barn  standing  eighty  feet  from  tlif 
dwelling,  with  which  there  was  a  conununication  from  tin'  house  lot  by  a 
l)air  of  bars,  was  held  to  be  within  the  curtilage.  The  court  in  its  opiiiiiin 
wentnnto  tlie  origin  of  the  phrase,  the  English  customs,  etc..  and  hclil  that 
the  terra  meant  that  sp.ace  upon  which  the  buildings  used  in  comiectidii 
with  the  bome  mansion  were  situated.  In  Pond  r.  I'eofile,  H  ^licli.,  l."i(i, 
there  were  a  number  of  fisliernit>n  attending  to  their  business  on  the  sluuv 
of  the  lake,  living  there  with  their  families  in  a  long  building  about  sixliiii 
feet  wide.  Thirty-six  feet  distant  was  defendant's  net  house,  where  del'eiul- 
ant  kept  his  nets.  The  net  house  was  held  to  be  witliin  the  "urtilage.  In 
Pitcher  V.  People,  16  Mich.,  142,  148,  Cooley,  J,,  speaking  of  a  burghirizeil 
barn  separate  from  the  dwelling,  said:  "There  can  be  no  doubt  that  the 
barn  in  question  would  have  been  regarded  as  within  the  curtilage  and  em- 
braced by  the  term  dwelling-house  ius  a  part  of  the  congregated  building* 
occu))ied  and  usotl  by  the  family  for  domestic  puqioses," 


r  t| 


Burglary : 

1.  Jury  may 

corn  as  f 
men  are 
they  ma} 
wfus  used 
cient,  if 
instruct 
proved  b 

2.  Brkakixg 

abstracte 
through 
opening  1 
an  elein( 
enlarged 
and  niig 
burglary, 

3.  Senti'.nc'K 

iion-])iiyii 
cannot  e 
(Sess.  Ac 
clerical  e: 
other  ern 

From  tlio 
][,  C.  Spcal, 

W.  L.  a 
T.  X.  Jl, 

Ston'k,  C. 
tlie  coi'u  lia 
tutcs  value, 
was  evidenc 
cents  a  biisl 
(Ired  and  ti 
mony  was  1 
circuit  colli' 
in  refusing 
ant.  Ther( 
of  lav;  that 


MILLER  V.  THE  STATE. 


105 


Miller  v.  The  State. 
(77  Ala.,  41.) 
BcRGi'ARY:  B real- inij  corn  crib  —  Property  of  value  —  Sentence  —  Cosif;. 

1.  Jury  may  assume  that  pkopkrty  has  a  value.— That  the  uw  of 

corn  as  food  for  liorsos  and  nuiles  constituteB  vaUie  is  a  fact  which  all 
men  arc  prcsiuiiod  to  know;  and  the  court  may  charge  the  jury  that 
they  may  conclude  the  corn  was  valuable  it'  the  proof  shows  tiiat  it 
was  used  to  feed  horses  or  mules;  and  circumstantial  proof  Leinp;  suffi- 
cient, if  strouf^,  convincing  and  satisfactory,  the  court  may  refuse  to 
instruct  that  the  fact  that  the  corn  had  value  must  "  be  positively 
proved  by  the  evidence." 

2.  Brkakixg  —  Thkustinu  akm  through  oiHNKS.—  The  corn  having  been 

abstracted  from  the  CTib  by  the  defendant,  by  thrustiug  his  arm 
throu;:;h  an  opening  l)et\veen  the  chinks,  if  he  made  or  enlarged  the 
oi)eiiing  for  the  ]iurpose,  tiiis  would  constitute  a  sufficient  breaking  as 
an  element  of  burglary;  but,  if  the  opening  was  neither  made  nor 
enlarged  by  him,  though  he  thrust  in  his  arm  and  took  out  the  corn, 
and  might  thereby  be  guilty  of  larcenj',  he  would  not  bo  guilty  of 
Imrgliiry. 

3.  Senti'.nc'K  to  hard  lauor  for  costs.— a  sentence  to  hard  later  for 

non-]iiiyment  of  costs,  in  a  criminal  prosecution  for  a  misdemeanor, 
cannot  exceed  eight  months,  nor  fifteen  months  in  a  case  of  felony 
(Sess.  Acts  18yO-81,  p.  ;il);  but  a  sentence  beyond  this  limit,  being  a 
chriial  error,  will  be  corrected  by  this  court,  if  the  record  contains  no 
other  error. 


From  tlie  Circuit  Court  of  Madison. 
JI.  C.  Spciike. 


Tried  before  the  Hon. 


ir.  £.  Chit/  and  Geo.  S.  Gordo)i,  for  appcLant. 
T.  N.  Mt'CUllan,  attorno\-gcneral,  for  the  state. 

Stone,  C.  J.  Tliere  was  certainly  testimony  in  tliis  case  that 
the  corn  liad  vahie.  Use  as  food  for  horses  and  mules  consti- 
tutes vahie,  as  all  men  must  be  presumed  to  know.  Ihit  there 
was  evidence  that  corn,  in  that  neighborhood,  was  \^'()rth  lifty 
cents  a  busliel,  and  that  there  were  in  the  crib  from  one  hun- 
dred and  fifty  to  two  hundred  bushels  of  corn.  If  tliis  testi- 
mony was  l)elieved,  there  was  ample  evidence  of  value.  The 
circuit  court  did  not  err  in  the  affirmative  charge  given,  noi' 
in  refusing  to  give  charges  JJ  and  4,  asked  by  the  defend- 
ant. There  being  proo'  that  corn  had  value,  there  is  no  ruk; 
of  law  that  tliat  fact,  any  more  tium  any  other,  shall  be  "  jtos- 


106 


AMERICAN  CRIMINAL  REPORTS. 


i, 


\    .( 


itively  proved  by  the  evidence."  Circumstantial  evidence  is 
sufficient,  if  strong  and  convincing  enough.  Cliarge  4  was 
rightly  refused,  because  it  is  both  abstract  and  involved.  So, 
charges  1  and  2  are  abstract,  for  there  is  no  testimony 
that  Davis  had  any  ownership  or  use  in  the  crib.  They  were 
rightly  refused  on  that  account,  if  for  no  other.  M.  tfc  E. 
Railway  Co.  v.  Kolb,  73  Ala.,  3i)G ;  1  Brick.  Dig.,  338,  sec.  41.        | 

2.  The  testimony  of  the  witness  Davis  tended  to  show  that 
the  defendant  removed  the  filling  or  obstruction  which  had 
been  placed  in  the  chinks  of  the  crib,  and  thereby  effected  an 
opening,  through  which  he  thrust  his  arm,  and  by  that  mcJins 
abstracted  the  corn  he  is  charged  with  intending  to  steal. 
This,  if  true,  would  be  a  sufficient  breaking  to  constitute  that 
element  of  the  crime  of  burglary.  The  defendant  testified 
that  he  did  not  remove  the  obstruction,  but  that  it  had  been 
previously  removed,  and  the  opening  was  there  when  he  went 
there.  He  also  testified  that  Davis  himself  took  the  corn  out 
of  the  crib.  Now,  if  the  defendant  reiuovod  nothing,  and 
neither  effected  nor  enlarged  the  opening  through  which  the 
corn  was  taken  out,  then  he  was  not  guilty  of  burglary,  even 
though  he  thrust  his  arm  in,  and  took  out  the  corn.  His  act, 
in  such  event,  might  be  larceny.  The  fifth  charge,  asked  by 
defendant,  raises  this  question.  It  claimed  an  aciiuittal  on  tiic 
hypothesis  of  defendant's  statement  of  the  facts  in  the  case. 
On  that  hypothesis  he  would  not  be  guilty  of  burglary; 
for,  to  constitute  that  crime,  there  must  be  both  a  breaking 
and  entering,  as  well  as  the  intent  to  steal  or  to  commit  a 
felony.  3  Greenl.  Ev.,  sees.  88,  7(5  et  seq.;  2  Russ.  on  (,'rinies 
(9th  ed.),  2;  ^^ines  v.  State,  50  Ala.,  153;  Brown  v.  State,  55 
Ala.,  123;   Walker  v.  State,  63  Ala.,  40. 

3.  There  is  an  error  in  the  judgment  for  costs.  The  sentence 
to  hard  labor  for  the  non-payment  of  costs  cannot  now  exceed 
eight  months  in  cases  of  misdemeanor,  and  fifteen  niontbs  in 
cases  of  felony.  The  sentence  in  this  case  exceeds  fifteen 
months.  Sess.  Acts,  1880-81,  37.  This  error  being  clerical,  if 
the  only  one  in  the  record,  would  have  been  here  corrected. 

Reversed  and  remandal. 


Confessions 

1.  Confess 
must  b 
of  one 

3.  EVIDENC 
When  i 
femlaii 
togetlii' 
the  siii 
ship  <an 

/.  n.  ()' 

E.  J.  Sh 

Morton, 
admissibili 
rule  is  wel 
be  the  free 
induced  b 
the  defend 
in  cvidonc« 
primarily 
voluntary, 
When  the 
this  coMin 
admissible 
evidence,  i 
the  whole 
not  the  v( 
Mass.,  2S' 
Mass.,  30." 

In  the  c 
presence  c 
fied:  "I 
Mr.  Wrig 
AVright  tt 
i)etter  tell 


COMMONWEALTH  v.  PREECE. 


107 


COMMONWRALTH   V.  PkEECE   AND   OTHERS. 
(140  Mass.,  276.) 
Confessions  :  Arson  —  Evidence  —  Ownership  of  property  —  Copy  of  deed. 

1,  Confession  to  officers. — To  be  admissible  in  evidence  a  confession 
uuist  be  free  and  voluntary.  If  it  is  induced  by  any  promise  or  threats 
of  one  in  authority  over  the  defendant,  it  is  incompetent. 

3.  Evidence  of  ownership  op  property  —  Registered  copy  of  deed. — 
Wlion  a  deed  is  not  in  the  control  of  the  government  nor  of  the  de- 
fendant, a  registered  copy  is  comjjetent  evidence,  and  such  evidence, 
together  with  oral  testimony  that  the  owner  of  the  property  had  leased 
the  same  to  tlie  person  occupying  it,  is  sufficient  proof  of  the  owner- 
ship and  possession  of  the  premises. 

/.  7i.  O'Donncll,  for  defendants, 

E.  J.  Sherman,  attorney -general,  for  the  commonwealth. 

Morton,  C.  J.  The  principal  question  in  the  case  is  as  to  the 
admissibility  of  the  confession  of  the  defendant  Burns.  The 
rule  is  well  established,  that,  to  be  admissible,  a  confession  must 
bo  the  free  and  voluntary  confession  of  the  defendant.  If  it  is 
induced  by  any  promises  or  throats  of  one  in  authority  over 
the  defendant,  it  is  incompetent.  When  a  confession  is  offered 
in  evidence,  the  question  whether  it  is  voluntary  is  to  be  decided 
primarily  by  the  presiding  justice.  If  he  is  satisfied  that  it  is 
voluntiu-y,  it  is  admissible;  otherwise  it  should  be  excluded. 
When  th(M'(>  is  conflicting  testimony,  the  humane  practice  in 
this  ooinmonwcalth  is  for  the  judge,  if  he  decides  that  it  is 
admissil)le,  to  instruct  the  jury  that  they  may  consider  all  the 
evidence,  and  that  they  should  exclude  the  confession,  if,  upon 
the  whole  evidence  in  the  case,  they  are  satisfied  that  it  was 
not  the  voluntary  act  of  the  defendant.  Com.  v.  Cuffee,  108 
Mass.,  285;  Com.  v.  Nott,  135  Mass.,  209;  Coin.  v.  Smith,  110 
Mass.,  305. 

In  the  case  at  bar,  the  defendant  Burns  was  taken  into  the 
presence  of  three  officers.  Alunyan,  one  of  the  oflicei's,  testi- 
lied:  "  I  did  not  tell  him  ho  had  better  tell  about  it.  I  think 
^Ir.  Wright  [one  of  the  other  officers]  said  he  had  better." 
Wright  testified  that  "he  did  not  say  to  Burns  that  he  had 
l)etter  tell  the  truth,  but  that  he  might  have  told  him  to  tell 


Mi 


AMERICAN  CRIMINAL  REPORTS, 


the  trutli.*'  If  either  officer  had  said  to  Burns,  ''  You  liud  bet- 
ter tell  the  truth,"  or,  "  You  had  better  tell  about  it,"  we  should 
be  of  opinion  that  the  confession  would  be  incompetent,  because 
such  language,  in  the  connection  in  which,  according  to  their 
testimony,  it  was  spoken,  would  naturally  convey  to  the  mind 
of  Hums  the  idea  that  he  would  gain  some  advantage  if  he 
confessed  his  guilt.  Com.  r.  Xott,  nh'i  siqyra.  But,  on  the  othei- 
hand,  if  the  officer  merely  asked  him  to  tell  the  truth,  this 
Avould  not  imply  that  the  officer  promised  any  advantage  if  bo 
confessed.  As  the  evidence  was  conflicting,  we  cannot  say,  as 
matter  of  law,  that  the  decision  of  the  presiding  justice  of  the 
superior  court,  admitting  the  evidence,  was  erroneous. 

Xor  can  we  see  any  evidence  that  the  defendant  Burns  was 
induced  by  any  acts  of  the  officers  to  make  a  confession  througli 
fear.  The  kind  of  fear  must  be  something  more  than  the  feuv 
■which  is  produced  by  the  fact  that  the  defendant  was  accused 
of  a  crime,  and  was  arrested  or  taken  into  custody.  Com.  v. 
Smit/i,  uhl  .supuc,'  Com.  v.  Mitchell.,  IIT  Afass.,  431.  Tliero 
was  no  evidence  of  any  threats  made  by  the  officei's,  or  of  any 
acts  on  their  part,  to  induce  him  to  confess  that  he  was  guilty 
when  in  fact  he  was  not  guilty.  The  bill  of  exceptions  does 
not  show  what  instructions  were  given,  and  it  is  to  be  pre- 
sumed that  the  presiding  justice  properly  left  it  to  the  jury  tu 
determine  whether  the  confession  was  voluntary,  with  instruc- 
tions to  disregard  it  if  it  was  not.  The  evidence  does  not  show 
any  promises  or  threats  made  to  the  other  defendants.  They  at 
first  denied  their  guilt;  but,  upon  l)eing  confronted  with  Burns, 
and  hearing  his  statement,  they  confessed.  Whether  it  is  just 
and  humane  to  take  into  custody  young  boys  sus[)ected  of  a 
crime,  and,  apart  from  iUeir  parents  and  friends,  and  without 
warning  them  that  they  are  not  obliged  to  criminate  them- 
selves, to  worm  out  of  them  a  confession,  is  not  for  our  con- 
sideration. A  confession  obtained  in  this  manner  cannot  be 
said,  as  nuitter  of  law,  to  be  inadmissible,  but  must  be  left  to 
the  jury  to  be  weighed  and  considered. 

The  registered  copy  of  the  deiid  to  the  New  Haven  &  Nortii- 
ampton  Company  was  competent  evidence,  as  the  deed  was  not 
in  the  control  of  the  governnu.'ut,  nor  of  the  defendant,  so  that 
it  could  be  produced  on  notice.  Com.  v.  Kmcn/,  2  (J ray,  8". 
This  deed,  together  with  the  testinumy  that  the  New  Ifaven  ^V 


Korthampt( 
Williams  ]\I 
ownership  J 
nient. 


CONSPIRACV  T 
binintj  /(i 
tended  (li 

A    MONEV-Ll 

for  moiic 
for  a  sn 
charged 
third  pjir 
for  intere 
the  proce 
of  far  gr( 
sum  rlai 
being  inr 
atteini)tii 
pretenses 
and  that 
legal  pro( 
represent 
to  be  con 

Queen's  ^ 
The  defei 
totjether  to 
a  second  co 
one  George 
and  owing 
been  found 
high  court 


F  i 


REG.  v.  TAYLOR  AND  BOYXES. 


109 


Nortliampton  Company  had  orally  leasc<l  the  building  to  the 
■Williams  ]\ranufacturing  Company,  was  sufficient  proof  of  the 
ownership  and  possession  of  the  building  alleged  in  the  indict- 
ment. 

Kvceptlons  overruled. 


Reg.  V,  Tavi.ok  and  Boynes. 

(15  Cox's  C.  C,  205.) 

Conspiracy  TO  DEFRAUD:  ^l//or/ip//  and  ..'  it  —  False  pretenses  —  Com- 
hining  toycllter  to  enforce  hi/  mcaiiH  of  legal  process  payment  of  pre- 
temh'd  debt. 

A  MONEY-LKXDER,  liavinR  a  claim  for  a  small  sum  against  a  borrower 
for  iiioiiey  lent  and  high  interest,  caused  an  attorney  to  issue  process 
for  a  sum  double  the  amount,  making  up  the  difference  by  items 
charged  on  various  pretenses:  and  after  receiving  pivyment  from  a 
third  party  of  the  sum  lent,  so  that  only  a  sum  of  £5  remained  due 
for  interest,  still  prosecuted  the  suit  for  the  wliole  amount  indorsed  on 
the  process,  and  then  tried  to  get  from  the  debtor  a  charge  on  property 
of  far  greater  value,  and  repres(?nted  to  the  third  party  that  the  whole 
sum  claimed  was  really  dxie.  Tlie  money-lender  and  tlie  attorney 
being  indicted  for  conspiracy  to  defraud  the  borrower,  and  also  for 
attem]iting  to  obtain  money  from  the  third  party  by  means  of  false 
pretenses,  it  was  held  that  thert;  was  a  cjise  for  the  jury  on  both  counts ; 
and  that  if  the  jury  believed  the  two  combined  together  to  enforce  by 
legal  process  payment  of  sums  they  knew  not  to  be  due,  and  falsely 
represented  them  to  be  due,  in  order  to  obtain  i)ayment,  they  were  liable 
to  be  convicted,  as  they  accordingly  were. 

Queen's  T\'nch  Division.  (Before  Lord  Coleridge,  L.  C.  J.) 
The  defendants  were  indicted  in  one  count  for  conspiracy 
together  to  cheat  and  defraud  one  Charlotte  Blackman;  and  in 
a  second  count  for  attempting  to  obtain  a  sum  of  money  from 
one  George  Lewis  by  falsely  pretending  that  the  sum  was  due 
and  owing  from  her  to  the  defendants.  The  indictment  had 
been  found  at  the  central  criminal  court  and  removed  into  the 
high  court  by  certiorari,  obtained  on  behalf  of  the  defendants. 

Charles  Russell,  Q.  C,  and  Crump,  for  the  prosecution. 
I)i<jhy  Seymour,  Q.  C,  Poland  and  •/.  F.  Skipper,   for  the 
defendant  Taylor. 

Waddy,  Q.  C,  and  Carter,  for  the  other  defendant,  Boynes. 


s 


110 


AMERICAN  CRIMINAL  REPORTS. 


The  defendant  Taylor  was  a  money-lender,  theother  defend- 
ant, Boynes,  was  an  attorney. 

On  the  2tth  day  of  August,  1881,  Charlotte  Blackman  had, 
by  deed,  a  sum  of  money  made  payable  to  her  in  three  instal- 
ments of  £50,  the  first  to  be  paid  at  once,  the  second  on  the 
24th  day  of  February,  1882,  and  the  third  on  the  24th  day  of 
August,  1882.  In  December,  1881,  she  was  in  London,  in  want 
of  a  sum  of  £15  to  enable  her  to  go  to  Liverpool,  where  she 
had  employment  offered;  and  in  consequence  of  an  advertise- 
ment of  a  loan  office  in  London,  kept  by  Taylor,  she  applied 
at  the  office  for  a  loan  to  that  amount.  He  said  he  must  con- 
sult the  other  defendant,  Boynes,  the  attorney ;  and  afterwards 
she  saw  them  both  together^  and  obtained  a  loan  of  £15,  of 
which,  however,  10s.  was  deducted  for  the  charge  of  preparing 
a  document  by  which  she  agreed  to  charge  her  next  instahuent 
as  security,  and  authorized  Taylor  to  receive  the  money  out  of 
it,  and  to  incur  necessary  expenses;  and  for  that  advance  she 
gave  a  promissory  note  for  £20,  the  additional  £5  being  for  in- 
terest, and  the  sum  being  made  payable  in  instalments,  the 
whole  to  become  due  on  default.  She  made  default  in  pay- 
ment of  the  first  instalment,  Avhich  was  due  the  15th  day  of 
January,  that  is,  in  a  month,  and  then  by  the  terms  of  the  note 
the  Avhole  £20  became  due.  On  the  next  day,  the  16th  day  of 
January,  a  writ  of  summons  against  her  was  issued  by  the  de- 
fendant Boynes,  as  attorney  for  Taylor,  indorsed  for  £41  15*., 
the  debt  being  £20,  and  the  rest  being  made  up  of  expenses, 
the  principal  sums  charged  being  £6 10s.  charged  for  a  journey 
by  Taylor  to  Liverpool  to  see  her,  which  he  justified  under  a 
clause  in  the  agreement  authorizing  him  to  incur  expenses  in 
endeavoring  to  recover  the  debt  (which  journey  he  had  not 
•;  lertaken  when  the  writ  was  issued),  and  a  sum  of  £3  13*. 
c'-i..rged  for  a  deed  prepared,  and  charging  her  interest  on  the 
»  '  t  instalment,  which  deed,  after  the  writ  on  the  19th,  Taylor 
took  down  to  Liverpool,  and  endeavored  to  persuade  her  to 
sign,  which  she  did  not  do. 

On  the  2d  of  February  particulars  of  the  claims  were  deliv- 
ered, in  whicli  the  suni  of  £41  15.s.  indorsed  on  the  writ  could 
not  be  made  up,  and  the  amount  charged  was  only  £31  15.y., 
made  up  in  this  way:  Sum  due  on  note,  £21 ;  commission  and 
expenses  tlicrcon,  4.?.  G'l ;  paid  my  solicitor  charges  of  preparing 


: 


assignment 
penses  of  j( 
£31 15». 

On  the 
George  Le\ 
the  younf 
she  had  or 
10s.  as  inte 
iJlth  day  o 
tlie  young 
that  he  wo 
however,  u 
carried  on. 
sumnuirily : 
that  the  su 
missed,  an( 
Boynes  sig 
by  default, 
£40  Gs.,  no 

On  the  2 
;Mr.  Lewis 
day  both  tl 
had  receive 
claimed  pa; 
ment  was  i 
was  the  sii 
excessive  ii 
and  threat* 

withdrawn 


REG.  V.  TAYLOR    \.ND  BOYNES. 


Ill 


assignment  of  interest  under  deed  of  1881,  £3  13*.  6d.',  ex- 
penses of  journey  to  Liverpool  to  see  defendant,  £6  17s. ;  total, 

£31  15s. 

On  the  24tli  day  of  February,  1882,  Boynes  went  to  Mr. 
George  Lewis,  the  solicitor,  who  held  the  money  payable  to 
the  young  woman,  and  demanded  ]myment.  He  said  that  as 
she  had  only  had  £15,  that  was  all  that  was  fairly  due,  with 
Kk  as  interest,  and  he  paid  the  defendant  £15  10s.  On  the 
24th  day  of  l\Icirch,  however,  the  defendant  Taylor  wrote  to 
the  young  woman,  claiming  £10,  and  on  the  29th  he  wrote 
that  he  would  take  £4  lO.*.,  and  £2  2s.  for  costs.  She  was, 
however,  unable  to  pay  or  to  defend  the  action,  which  was 
carried  on.  An  attempt  was  first  made  to  obtain  judgment 
summarily ;  and  IJoynes  drew  an  affidavit,  sworn  by  Taylor, 
that  the  sum  claimed  was  due ;  but  the  application  was  dis- 
missed, and  on  the  l<>th  day  of  May,  1882,  the  defendant 
Boynes  signed  judgment  in  the  action  on  behalf  of  Taylor, 
by  default,  for  £IM  15s.  debt,  and  £S  lis.  for  costs,  making  up 
£10  0.y.,  no  credit  being  given  for  the  £15  10,«f.  already  paid. 

On  the  2-Jd  day  of  August  the  defendant  liJoynes  wrote  to 
^[r.  Lewis  for  the  payment  of  the  whole  amount,  and  next 
(lay  both  the  defendants  called  on  him  and  asked  whether  he 
had  received  the  £50  then  payable  to  the  young  woman,  and 
claimed  payment  out  of  it  of  the  whole  sum  for  which  judg- 
ment was  signed.  lie  asked  for  particulars,  and,  finding  it 
was  the  same  debt  which  he  had  already  paid  (except  the 
excessive  interest),  he  denounced  the  transaction  as  fraudulent, 
and  threatened  to  prosecute  unless  the  judgment  was  at  once 
withdrawn;  and  as  it  was  not,  he  had  then  instituted  the 
prosecution  which  he  had  conducted  at  his  own  expense,  the 
director  of  public  prosecutions  having  declined  to  interpose, 
not  because  it  was  not  a  fit  case  for  prosecution,  but  because 
he  thought  it  a  plain  case  presenting  no  difficulty. 

The  young  woman  was  called  as  a  witness,  and  the  docu- 
ments were  proved  and  put  in ;  the  note,  the  memorandum  of 
agroouient  and  charge,  the  deed  prepared  by  the  defendant 
Boynes,  the  writ  and  other  proceedings  in  the  action. 

^Ir.  (ieorge  Lewis  was  also  called  as  a  witness,  and  stated 
that  when  the  defendants  first  saw  him  and  got  the  £15  they 
did  not  mention  the  action;  nor  did  he  know  it  was  pending; 


AMERICAN  CRIMINAL  REPORTS. 


aivl  tiiat  wlien  they  called  again  in  August,  1882,  he  did  not 
know  at  first  that  it  was  in  respect  of  the  same  transaction, 
until  he  asked  for  particulars. 

Seymour,  for  the  defendant  Taylor,  urged  that  he  had  acted 
vithin  his  legal  rights;  that  the  sum  indorsed  on  the  writ  was 
only  an  estimate,  and  that  the  charges  ultimately  made  were 
legal  under  the  agreement;  that  the  proceedings  in  the  action 
were  regular,  and  could  not  constitute  a  fraud ;  and  that  judg- 
ment was  always  signed  for  the  amount  of  the  claim,  though 
execution  would  only  be  issued  for  the  sum  really  due. 

But  {IS  to  this  defense.  Lord  Coleridge,  L.  C.  J.,  pointed  out 
that  the  defendants  had  claimed  the  whole  sum  for  which  judg- 
ment was  signed. 

Waddy,  for  the  defendant  Boynos,  urged  that  he  had  acted 
only  as  attorney,  and  quite  regularly. 

But  as  to  this,  Lord  Coleridge,  L.  C.  J.,  said  that  a  legal  pro- 
C30<ling  perfectly  regular  might  yet  be  fraudulent,  or  a  step 
taken  or  means  used  in  the  prosecuticm  of  a  fraudulent  scheme. 
And  that  though  no  doubt  merely  to  issue  process  for  more 
than  was  due  might  not  be  a  criminal  offense,  yet  it  miglit  be 
otherwise  if  it  was  known  not  to  be  due. 

The  defendants  were  allowed,  at  their  earnest  instance,  to 
address  the  jury  after  their  counsel,  giving  their  own  account 
of  the  transaction. 

Lord  Coleridge,  L.  C.  J.,  in  leaving  the  case  to  the  jury, 
pointed  out  the  acts  and  steps  in  the  transaction,  in  which 
both  the  defendants  were  concei'ned,  as  the  affidavit  of  debt. 
and  directed  them  that  if  they  l)elieved  the  defendants  \m\ 
conspired  together,  ])y  means  of  tiie  abuse  of  legal  process,  to  oli- 
tain  judgment  for  and  enforce  ]iayment  of  money  they  knew 
not  to  be  due,  and  had  made  false  statements  to  ISfr.  Lewis  to 
induce  him  to  pay  the  money,  then  they  should  convict  the 
defendants. 

The  jury  found  both  the  defendants  guilty  upon  both  counts, 


i 
I 


CONSP 

1.  DUPUCTTY 

wickedly 
character 
intent  to 
and  in  l'" 
nislit-tini 
ily  and  ii 
assault, 
ground  tn 

2.  Good  r\i.\\ 

tlip  ;;oi'd  I 
stuudil  <■"! 
entitled  ti 
be  likely  t 

3.  JlK()l{  —  O 

formed  at 
he  hits  for 
any  of  tlu 
can  rendei 

Appeal  frc 
Th(;  indict 
David  Ormis 
ciously  cons] 
person  and  c 
the  siiid  Clia 
upon  liiin  a 
pursuance  of 
the  night-tin 
from  his  hoi 
did  th(Mi  an 
featlier  the 
the  defondar 
in  the  ))enitc 

Wins/ 010  ( 

Smith  Mc 

Ad.vms,  -L 

of  judgnien 

Vol.  A 


STATE  V,  ORMISTON.  113 


State  v.  Okmistox  et  au 

(66  Iowa,  143.) 

CoNSPlBAOY :  Indictment  —  Duplicity  —  Evidence  —  Juror. 

1.  Duplicity— An  indictment  which  chaiuiks  that  defendants  "did 

wickedly  and  maliciously  conspire  together  to  injure  the  peraon  and 
character  of  one  C.  B.,  and  to  assault  tiie  said  C.  B.  with  the  felonious 
intent  to  inflict  upon  iiini  n  great  bodily  injury,  in  violation  of  law; 
and  in  pursuance  of  said  conspiring  togctluT  said  defendants  did  in  the 
ni;^ht-tinie  feloniously  decoy  said  C.  B.  away  from  his  home  and  fam- 
ily and  into  the  ])uhlic  highway,  and  did  then  and  there  feloniously 
assault,  ill-treat,  and  tar  and  feather  the  said  C.  B.," — is  not  bad  on  the 
ground  1)1'  duplicity. 

2.  Good  (  haka( tku  of  accl'skd.— An  instruction  that  if  the  jury  found 

the  good  character  of  the  accusiMl  established  from  the  evidence,  they 
should  consider  it,  and  allow  it  such  weight  as  they  believed  it  fairly 
entitled  to,  as  tending  to  siiow  that  men  of  such  character  would  not 
\vi  likely  to  conunit  the  crime  charged,  states  the  law  correctly. 

3.  Jlkok  — Oi'ixiDN  DASKO  OX  KiMou. —  It  (iinnot  be  said  tluit  a  jui'or  has 

formed  an  iui(|nalitied  opinion  when  he  states  that  the  opinion  which 
he  has  formed  is  based  u]K>n  riunor,  and  not  uj^m  statements  made  by 
any  of  the  persons  claiming  to  Iw  witnesses,  and  that  he  still  thinks  he 
can  render  a  true  verdict. 

Appoal  fi'oiu  I*<)\V(>slii('k  District  (\)Ui't. 

The  indictuuMit  in  the  ciis(>  ch;ir;n'cd  that  "  Calvin  Onniston, 
Diivid  Oi'iiiistoii  and  Charh's  I'l-anicr  did  wickedly  and  nuili- 
ciously  conspire  too'(;tlier  witli  int(>nt  wronofully  to  injure  the 
person  and  ciiai-acter  of  one  ("hai'les  IManchard,  and  to  assault 
tlie  siiid  ("harles  IManchard  with  tlie  Felonious  intent  to  inHict 
upon  him  a  <2;reat  Ixxlily  injury,  in  violation  of  law;  and  in 
pursuance  of  said  conspirini^  t(j;^'etluM*  said  defendants  did,  in 
the  night-time,  feloniously  decoy  said  Oliai'les  Hlanchard  away 
from  his  home  and  family,  a lul  into  the  public  highway,  and 
(lid  tliiMi  and  there  feloniously  assault,  ill-treat,  and  tar  and 
feather  the  said  Chai'h's  inanchard."  Upon  this  indictment 
the  defendants  were  convicted  and  sentenced  to  confinement 
in  the  ])enitentiary  for  tlire(>  months.     They  appeal. 

Waus/ow  tC'  Varn(//n,  for  appellants. 

Smith  McPherson,  attorney-general,  for  the  state. 

Adams,  J.    1.  After  verdict  the  defendants  moved  in  arrest 
of  judgment,  on  the  ground  that  "the  indictment  charges 
VoL.V-8 


lU 


a:^ierican  criminal  reports. 


no  offense,  and  i^  bad  for  duplicity."  The  indictment,  we 
assume,  was  drawn  under  section  4087  of  the  code.  That  sec- 
tion is  in  these  words:  "If  any  two  or  more  persons  conspire 
or  confederate  togetlier  witli  the  fraudulent  or  malicious  intent 
wron/^'fully  to  injure  the  jierson,  character,  business,  or  prop- 
erty  of  another,  .  .  .  every  such  ofVendor  shall  bo  punished 
by  imprisonment,''  etc.  As  to  the  position  that  the  indictment 
does  not  cliargc  any  offense,  the  defendants,  by  their  c(jnnsel, 
in  their  ar<jumont,  say:  "It  is  an  impossibility  to  a,i>Teo  and 
intend  to  commit  an  assault  witli  the  intent  to  indict  <^reat 
bodily  injury.  No  person  can  intend  to  have  an  intent.  Again, 
the  statute  does  not  punish  a  conspiracy  Avith  an  intent  to  in- 
tend sometliing,  even  if  such  a  tiling  cf)uld  be."  Tliis  criticism, 
we  suppose,  is  made  with  reference  to  so  much  of  the  indict- 
ment as  chiirges  a  conspiracy  "to  assault  the  said  Charles 
Blanchard,  with  the  feloni(ms  intent  to  inflict  upon  him  a  ifveat 
bodily  injury."  To  the  criticism  we  think  that  two  sullicient 
answers  may  be  made.  ^Ve  do  not  think  that  there  was  any 
design  to  charge  the  defendants  with  intending  to  have  an  in- 
tent. The  allegation  tliat  the  defendants  conspired  to  assault 
lilanchard,  with  intent  to  inHict  a  gi'<!ai  bodily  injury,  moans, 
by  any  fair  construction,  to  charge  thein  with  conspiring  to 
assault  him,  and  to  intlict  a  great  bodily  injury.  In  the  second 
place,  if  it  were;  true  that  the  words  referred  to  charge  no 
offense,  they  should  be  treated  merely  as  surplusage.  The 
offense  is  sutHciently  charged  in  the  use  of  otiicr  words.  The 
indictment  charges  that  the  defendants  "did  conspire,  witli 
intent  wrongfully  to  injure  the  person  and  character  of  lilan- 
chard." In  tliis  tlie  indictment  followed  the  statute  substan- 
tially, and  if  the  portion  criticised  is  meaningless,  it  did  not 
have  the  effect  to  vitiate  the  indictment.  Larwd  v.  O'la.,  12 
]\Ietc.,  240;  fAilmvin.  v.  J'coph',  1  N.  Y.  (Coinst.),  P.TO. 

Another  objection,  however,  is  urged,  which  is  of  a  dilferent 
character.  It  is  said  that  the  indictment  is  bad  for  du[»licitj. 
The  defendants'  theory  is  that  if  the  indictment  charges  a  con- 
spiracy at  all,  it  charges  two  offenses,  to  wit,  a  conspii-acv  to 
injure  the  person  of  Blanchard,  and  the  actual  commission  of 
the  injury.  It  is  not  to  be  denied,  we  think,  that  the  indict- 
ment charges  a  conspiracy  and  the  overt  act  which  the  defend- 
ants cons])ired  to  commit.    The  court  below,  however,  did  not 


STATE  V.  OKMISTUN. 


116 


regard  the  indictment  as  ohargin»^  two  otfonsos,  nor  u  com- 
poiiml  otFonse,  but  simply  a  cons[)iracy ;  uiul  so  instructr'd  the 
jiirv.  Its  iiistriictiou  on  this  point  is  in  those  words:  "  Under 
tho  iiuUctiaent  and  evidence  in  this  case,  you  are  limited  to  the 
iaiiuii'y  us  to  whether  sjiid  defendants,  or  some  two  or  more  of 
them,  did  ccMispire  or  confederate  together,"  etc.  Not  only 
was  the  indictment  not  demurred  to  on  the  ground  that  it 
ciiar"od  two  oil'enses,  but  it  ap[)eai's  allirmatively  that  the  case 
was  tried  and  submitted  ujion  the  theory  that  the  indictment 
cluu'"i'd  only  conspiracy.  Tlie  ollV'iise  of  conspiracy  may,  it  is 
true,  1)0  complete  without  the  commission  of  the  overt  act 
which  the  conspirators  agreed  to  commit.  C0//1.  v.  Judd,  2 
Mass.,  ;52li;  Com.  >'.  KVo'/v  /;,  <i  ^Fass..  74;  State  v.  Buchanan,  5 
liar.  &  J.,  ;51T;  Sfalr  r.  .V<i;/c:s,  2."»  N't.,  ii't.  It  would  seem  to 
follow  that,  though  the  overt  act  may  have  been  committed,  it 
is  unnecessary  to  charge  it,  unless  the  imlictment  is  drawn 
under  a  statute  which  recpiires  that  it  should  be  charged. 

In  2  Dish.  Grim.  Law,  j^  203,  the  author  says:  "In  conspir- 
acy the  indicliuent  usually  sets  out  the  matter  aggravating 
the  oifeuse.  yet  the  oU'ensc  e.xists  without  this  matter,  ami, 
strictly,  it  need  not  l»e  stated  in  the  indictment,  though  some 
authorities  hold  otherwise."  On  tliis  point  we  observe  that  in 
3  Greenl.  Ev..  ,^  !».">,  the  learned  autiior  seems  to  regard  the 
rule  as  diU'ei'ent  from  what  l»isho[)  does.  He  says:  "If  the 
conspiracy  was  cai'ried  out  to  the  full  accomplishment  of  its 
object,  it  is  iu,'c('ssary  to  state  what  was  done  and  tlu'  jiersons 
who  were  thereby  iujui'ed."  In  Sfafr  v.  M<iijlni'i'ii,  4>  Me.,  218, 
it  was  held  that  if  the  conspirators  carry  out  the  ol)ject  of 
conspiracy,  that  fact  nuiy  be  alleged  in  aggravation  of  the 
olfonsc.  aiul  given  in  evidence  to  prove  the  conspiracy.  Though. 
.the  olfonsc  <jf  covispi racy,  even  where  the  overt  act  is  com- 
mitted, is  complete  before  the  commission  of  the  overt  act,  in 
the  sense  tiiat  nothing  more  is  necessary  to  constitute  the 
ciiiiu\  vt't  tiic  consi)ii'acv  must  be  deemed  to  continue  durinir 
the  commission  of  the  overt  act.  Com.  v.  Coii'tas,  3  IJrewst. 
(Pa.j,  ."iT.j.  The  conclusion  which  we  reach  is  that  where  the 
overt  act  is  charged  it  does  not  follow  necessarily  that  the  in- 
(lictmont  was  designed  to  charge  anything  mcjre  than  conspir- 
acy. If  it  sliould  be  so  drawn  as  to  show  a  design  to  claim  a 
conviction  foi-  the   injury  committed,   though  the  evidence 


it: 


116 


AMERICAN  CRIMINAL  REPORTS. 


should  fail  to  sustain  the  charge  of  conspiracy,  such  indictment 
manifestly  could  not  bo  sustained  unless  the  olFenso  cuuld  be 
regarded  as  a  compound  olfense. 

In  State  v.  R'hIIi ;/.  4S  Iowa,  ;57(>,  the  defendants  \v»;re  cliiii-ged 
with  burglary,  with  intent  to  commit  larceny,  and  with  the 
commission  of  the  hirceny  intended.  The  indictment  was  con- 
strued by  the  court  below  as  chai'ging  the  oll'ense  <jf  biiri>l;irv 
and  tin.  offense  of  larceny,  and  the  court  instiucted  Uie  jury 
that  they  might  convict  of  either  olfense,  as  the  evidence 
should  wan-ant.  Burglary  and  larceny  not  l)eing  a  compumul 
offense,  it  appeared  to  this  court  that  the  defendants  were. 
under  the  indictmenc,  tried  at  one  time  for  two  offenses,  and 
that  the  demurrer  to  the  indictment  should  liave  been  sustuined. 
But  that  case  differs  from  this.  The  burglary  did  not  eontinue 
during  the  larceny  so  as  to  nudie  the  act  of  larceny  identical 
with  the  act  of  burglary.  The  act  of  bui'glary  was  necessiwily 
completed  before  the  act  of  larceny  began.  In  the  case  at  bur 
the  conspiracy  continued  iind  emi^i-aced  the  overt  act,  and  wiiile 
we  do  not  say  that  the  defendants  might  not  have  iteeii  con- 
victed and  punished  under  separate  iiuliclments,  botii  for  the 
conspiracy  and  the  injury  committed,  we  do  not  thinlc  tliattiie 
indictment  in  this  case  was  drawn  with  the  viow  of  securinira 
conviction  for  two  olfenses.  or  of  allowing  the  jury  to  convict 
for  the  injury  if  they  r.iiled  to  llnd  a  conspiracy.  We  tiiinli 
that  we  are  justiJled  in  saying  tliis  in  view  of  the  i)eeuliar 
character  of  the  oU'ense,  and  in  view  of  the  doctrine  whieli  lias 
prevailed  in  regaril  to  indictments  drawn  with  the  design  of 
charging  this  offense. 

AVc  are  not  able  to  cite  any  ruling  of  this  court  which  we 
can  say  is  precisely  in  ])oint;  but  we  think  the  ruling  whicli  we 
now  make  is  suslaincd  in  a  general  way  by  State  v.  JlaijduK  V) 
Iowa,  11,  and  State  v.  Shafcr,  iV.)  Iowa,  2!)0.  It  seems  to  us. 
indetid,  that  the  present  case  is  a  stronger  one  in  favor  of  the 
indictment  than  either  of  those.  The  delendant  relies  upon 
Stdtr  0.  luinudu,  G;]  Iowa,  107.  The  indictment  in  that  case 
was  held  biul  f')!-  duplicity,  fiut  in  that  case  there  was  a 
charge  of  burning  insured  goods,  and  that  tiharge  was  not 
made  simply  as  an  overt  act  of  the  conspiracy.  The  agree- 
ment was  to  renujvc  the  goods  and  burn  the  building.  The 
indictment  then  ap})ears  to  charge  the  doing  of  sometliing 


outside  of 
referring  t( 
goods,  sayi 
charge  of 
charged  by 
offenses  wli 
mil  tl'C  cor 
manifest  tli 
plated  by 
Possibly,  s( 
might  seem 
but  it  will 
that  case  an 

Another  < 
out  the  mc 
was  held,  ii 
tended  act  i 
what  mean; 
the  intendcM 
wron  "fully 
wrongfully  i 
than  a  niisdi 
an  indictnie 
injury  need 

2.  The  ev: 
who  Avere  en 
been  too  in 
sought  to  s 
he  (lid  not  d 
why  he  did 
the  defendai 
any  dilTerei 
assigned  as 
charge  was 
tendency  to 
was  not  the] 
did  the  failii 
the  credibili 
explanation 
prejudice,  as 


y  Kf '  '■  ■<■ 


V" 


STATE  V.  ORMISTON. 


117 


outside  of  the  conspiracy.  Mr.  Justice  Reed,  in  the  opinion, 
referring  to  tlie  allegation  in  respect  to  burning  the  insurid 
goods,  says:  "These  allegations  are  all  distinct  from  the 
charge  of  conspiracy."  And,  again,  he  says:  "The  offense 
clmrfcd  by  the  allegiitions  is  entirely  distinct  from  any  of  the 
offenses  which  it  is  alleged  in  the  pai-t  o[  the  indictment  charg- 
in'' the  conspiracy  was  the  object  of  the  conspiracy.'"  It  is 
manifest  that  it  the  indictment  charged  a  crime  not  cont<in- 
platcd  by  the  conspiracy,  the  indictment  was  bad  for  duplicity. 
Possibly,  some  language  used  in  the  c<»urse  of  the  opinion 
miflit  seem  to  ad'ord  some  support  to  the  tlefendant's  position; 
but  it  will  be  seen  that  there  is  an  essential  difference  between 
that  case  and  this. 

Another  object'o.i  urged  is  that  the  indictment  does  not  set 
out  the  means  which  the  defendant  intended  to  employ.  It 
was  held,  in  Sfufr  r.  Potto;  'IS  Iowa,  554,  that  where  the  in- 
tended act  is  not  criminal,  the  indictment  should  charge  with 
what  means  the  act  was  to  be  done.  But  in  the  case  at  bar 
the  intended  act  was  criminal.  Tiie  conspiracy  alleged  was  to 
wrongfully  in;  ire  the  person  of  ISlanchard.  It  is  true  that  to 
wrongfully  injure  the  person  of  another  is  not  necessarily  more 
than  a  misdemeanor,  but  it  is  at  least  that;  ami  in  our  opinion 
an  indictment  which  charges  a  cons[)iracy  to  commit  such 
injury  need  not  charge  the  means  by  which  it  was  to  be  done. 

2.  The  evidence  shows  that  during  the  assault  the  persons 
whoAvere  (Migaged  in  nuiking  it  charged  lilanehard  with  having 
been  too  intimate  with  the  school-mistress.  The  defendant 
souglit  to  sliow  by  r>lanchard  himself  that,  when  so  charged, 
he  (lid  not  <leny  it.  'Die  counsel  for  the  state  then  asked  him 
why  lie  did  not  deny  it,  and  he  was  allowed  to  answer,  against 
the  defendants'  objection,  that  he  did  not  consider  that  it  made 
any  difference  to  them.  The  admissi'  u  of  this  evidence  is 
assigned  as  error.  The  fact  that  J>lanchard  did  not  deny  the 
charge  was  wholly  imnuiterial.  It  did  not  have  the  slightest 
tendency  to  exculpate  the  persons  engageil  in  the  assault.  It 
was  not  their  province  to  demand  a  confession  or  denial.  Nor 
did  the  failure  to  deny  the  charge  have  any  tendency  to  impair 
the  credibility  of  Blanchard's  testimony.  It  follows  that  the 
explanation  given  by  way  of  suj)j)osed  rel)uttal  was  without 
prejudice,  as  there  was  nothing  to  rebut. 


lis 


AMERICAN  CRIMINAL  REPORTS. 


3.  The  counsel  for  the  state,  while  examining  T>lancliar(l  as 
a  Avitiiess,  asked  a  question  in  these  words:  'MNHiat  was  said, 
if  anytliing,  about  castrating  you?"  This  was  objected  to 
upon  the  ground  that  it  was  re-examination,  incompetent  and 
immaterial,  leading  and  calling  for  the  opinion  of  the  witness, 
*The  court  overruled  the  objection,  and  the  witness  answered: 
"  Why,  they  said,  when  they  first  took  hold  of  me.  that  that 
Avas  what  they  were  going  t(^  <lo."  AVe  are  not  able  to  see 
that  the  question  was  objectionable. 

4.  One  Carter  was  examined  ao  a  witness  in  behalf  of  the 
state,  and  testified  in  these  words:  "On  .May  2S,  ISSIJ,  I  lived 
in  Scott  township,  about  a  (piarter  of  a  mile  from  ( 'al.  Oriuis- 
ton's.  I  saw  him  that  day  at  the  barn-yard  gate  at  my  phice. 
Charles  W.  Kirk  was  hauling  cream,  and  1  let  him  out  at  the 
road.  Cal.  Ormiston  halted,  and  we  ])assed  the  time  of  day, 
and  he  asked  me  if  I  did  not  want  some  fun.  lie  said  he  and 
some  others  had  some  notion  of  tarring  Charles  JJlaiuliard 
that  night  and  he  wanteil  to  know  if  1  would  not  assist.  I 
told  him  no."  On  cross-examination  the  defendants  asked  liini 
a  question  in  these  words:  '•  What  had  you  ever  doiie,  or  what 
transaction  did  you  ever  have,  that  would  lead  him  to  believe 
that  you  would  go  in  to  commit  a  crime?"  This  question  was, 
u])on  objection  by  the  state,  disallowed,  and  the  defendants 
assign  the  ruling  as  error.  No  reason  is  given  wh}'  such  a 
question  should  be  allowed,  and  wo  are  not  able  to  discover 
any. 

5.  *Itiny  objections  were  interposed  to  the  admission  of  evi- 
dence which  we  cannot  specilically  notice  without  unduly 
extending  the  opinion.  We  must  be  allowed  to  say  tliat  we 
have  examined  them  all,  and  do  not  find  that  they  are  well 
taken.  Some  evidence  objected  to  could  by  no  jjossibility  Iiave 
been  prejudicial.  Other  evidence  was  objected  to  as  being 
admitted  out  of  place;  but  this  is  largely  a  matter  of  disire- 
tion  with  the  trial  court.  The  evidence  does  not  a])pear  to  us 
to  liave  been  especially  important,  nor  to  have  been  introdikcd 
out  of  place  by  any  ])lan  to  secure  an  advantage  by  so  doing: 
noi'  are  we  able  to  see  that  the  defendants  were  denied  the 
right  of  rebuttal. 

6.  The  defendants  com 
assisted  by  another  a' 


plain  that  the  district  attorney  was 
ney,  without  any  showing  on  the  part 


of  the  distr 
attorney  re 
In  this  we 
defendants 
trial  accord 
7.  The  d( 
ffood  chara 
minds  of  th 
these  word: 
shown,  is  ai 
given  its  pr« 
a  reasonabl 
shown,  the 
conviction, 
ants  has  i)e( 
you  should 
asked,  and 
the  defenda 
their  guilt 
and  also,  " 
dence,  you 
believe  it  fa 
such  chai'ac 
cluu'ged  in  t 
giving  of  tl 
That  i)art 
objected  to 
might  consi 
with  such  cl 
charged." 
considered  i 
In  our  opin 
jury  might 
character  u 
crime,  but  t 
acter,  reach 
the  crime,  ( 
upon  the  g 
character  d 
commission 


STATE  V.  OBMISTON. 


119 


of  the  district  attorney  that  he  was  incompetent.  The  district 
attorney  rc([uested  the  assistance,  and  the  court  allowed  it. 
In  this  wo  do  not  think  that  there  is  anything  of  which  the 
defendants  can  properly  complain.  They  are  entitled  to  a 
trial  according  to  law,  and  only  that. 

7,  The  dofondunts  relied,  to  son\e  extent,  upon  evidence  of 
cTood  character  to  raise  a  I'casonable  doubt  of  guilt  in  tlie 
minds  of  tlie  jury.  On  this  jmintthey  asked  an  instruction  m 
these  words:  "(iood  character  of  the  accused,  if  it  has  been 
shown,  is  an  element  which  should  be  considered  by  you,  and 
given  its  pro))er  weight.  This  alone  may  be  sutticient  to  raise 
a  reasonable  doubt,  even  in  cases  where,  if  this  were  not 
shown,  tlie  evidence  would  otherwise  warrant  and  dcMnand  a 
conviction.  If,  in  this  case,  th?  good  character  of  the  defend- 
ants has  Ijoen  sliown.  and  it  raises  such  doubt  in  your  minds, 
you  should  ac(|uit."  The  court  refused  the  instruction  as 
asked,  and  instructed  as  follows:  "Before  you  can  convict 
the  defeiulants,  or  either  of  them,  you  must  be  satisfied  of 
their  iiiiilt  from  the  evidence,  bevoiul  a  reascmalde  doubt:" 
and  also,  "  if  yuii  lind  good  character  established  by  the  evi- 
dence, you  should  consider  it,  and  allow  it  such  weight  as  you 
believe  it  fairly  entitled  to  as  tending  to  show  that  men  of 
such  character  would  not  be  likely  to  commit  the  crime 
charged  in  the  case.''  The  refusal  to  instruct  as  asked,  and  the 
giving  of  the  instruction  above  set  out,  are  assigned  as  error. 

That  |)art  of  the  instruction  given  which  is  more  especially 
objected  to  is  that  in  which  the  jury  was  instructed  that  they 
might  consider  good  character  as  "  tending  to  show  that  men 
with  such  character  would  not  be  likely  to  commit  the  crime 
chiugcd."  It  is  said  that  "tlie  true  rule  is  that  it  should  be 
considered  as  tending  to  show  that  they  did  not  commit  it."' 
In  our  opinion  the  objection  is  not  well  taken.  It  is  true,  the 
jury  might  consider  the  evidence  of  the  defendants'  good 
character  i.s  tending  to  she  that  they  did  not  commit  the 
crime,  I)ut  the  juiy  could  not,  u])on  the  evidence  of  good  char- 
acter, reach  the  conclusion  that  the  defendants  did  not  commit 
the  crime,  or  reach  a  reasonable  doubt  upon  the  point,  except 
upon  the  ground  expressed  by  the  court.  Evidence  of  good 
iliaracter  does  not  have  the  effect  to  rebut  evidence  of  the 
commission  of  crime,  except  inferentially.    "We  see  no  error  in 


il; 


120 


AMERICAN  CRIMINAL  REPORTS. 


the  instruction  given,  and  it  appears  to  us  that  it  substantially 
covers  the  one  asked. 

8.  An  attempt  Avas  made  by  the  defendants  to  impeach  the 
character  of  two  witnesses  for  the  state,  "William  Carter  and 
Willard  Welch.    Upon  the  evidence  the  court  gave  an  instruc- 
tion as  follows:    "Evidence  has  been  introduced  tending  to 
show  that  the  general  reputation  for  truth  and  veracity  of  the 
witnesses  Carter  and  Welch,  in  the  neighborhood  in  wliich 
they  live,  is  bad.     You  should  consider  and   weigh  this  evi- 
dence, and  allow  it  such  weight  as  you  believe  it  fairly  entitled 
to,  and  determine  from  it  whether  such  witnesses,  or  either  of 
them,  have  been  successfully  impeached."     It  is  said,  in  criti- 
cism of  this  instruction,  that  there  is  not  "any  fixed  boundary 
line  which  marks  and  distinguishes  the  successfully  inipeaclied 
witness  from  the  one  upon  whom  the  attempt  had  In-en  made 
and  failed."     But  it  appears  to  us  that  the  distinction  is  not 
onl}'^  recognizable,  but  one  wliich  the  juiy  is  bound  to  recog- 
nize.    Every  witness  is  presumed  in  the  outset  to  be  truthful. 
If  impeaching  evidence  is  introduced,  and  evidence  in  i-ehuttal 
of  the  impeaching  evidence,  the  jury  must  consider  whether 
they  still  believe  the  witness  to  be  a  truthful  persori,  ami  the 
belief  of  each  juryman  in  this  respect  will  determine  whether, 
in  his  judgment,  the  witness  has  been  successfully  im[)('iiclied 
or  not. 

9.  Upon  the  subject  of  impeachment  the  court  gave  another 
instruction,  as  follows;  "If  you  believe,  from  the  evid(>nce, 
that  any  witness  has  been  successfully  impeached,  either  by 
reason  of  bad  reputation  for  truth  and  vei-acity,  or  l)y  reason 
of  statements  made  out  of  court  conflicting  with  statements 
made  on  the  witness  stand,  or  you  so  find  that  any  witness  has 
wilfully  sworn  falsely  in  regard  to  any  matter  or  thing  mat»>rial 
to  the  issues  in  the  case,  3'ou  will  be  justified  in  disregarding 
the  whole  testimony  of  such  witness,  except  in  so  far  us  you 
may  find  it  corroborated  by  other  credible  evidence  in  the  case, 
or  by  facts  and  circumstcances  proved  on  the  trial."  The  de- 
fendants complain  of  this  instruction.  They  say,  "an  im- 
peached witness  may  be  believed  without  corroboration;"  and 
cite  Gro'u.  v.  Cochmn,  43  Iowa,  544.  But  why  the  defendants 
should  urge  such  an  objection  we  are  wholly  unable  to  coni- 
prehend.    In  making  such  objection  they  seem  to  be  arguing 


in  support 
no  attemp 
Welch  wei 
wboUy  agi 
assumed  tl 
there  was 
cons])irut()i 
the  conspii 
of  the  defc 
testified  a.- 
ton's  barn) 
faces,  and 
I'hanchai'd 
their  coats 
pants.     1  (1 

1  saw  tlU!  t! 

No  other 
and  place ; 
were  engaji 
Welch  tend 
spiracy,  an( 
was  in  it. 
the  one  wIk 
(liK'ed  him  t 
and  where  1 
evidence,  th 
show  tliat  t 
Avhere  as  c 
iVMni'dcd  as 
This  is  enoi 

1(1.  The  < 
"  If  you  fin 
to  assault  a 
aid(Ml  and  a 
understandi 
pose,  then 
and  the  dtd' 
evidence  sh 
way  in  tiie 
consisting  c 


STATE  r.  ORMISTON. 


121 


^1 

I 


in  support  of  the  tostimony  of  Carter  and  "Welch.  There  was 
no  attempt  to  impeach  any  other  witness,  and  Carter  and 
Welch  were  witnesses  for  the  state,  and  their  testimony  was 
wholly  agiiinst  the  <lf^ fondants.  P>ut  tliey  say  that  the  conrt 
assumed  tliat  tliere  was  c«n'roborating  evidence,  when,  in  fact? 
there  was  not.  AVelcli  testified  to  being  present  when  the 
conspirators  assembled  and  prepared  to  carry  out  the  object  of 
the  conspiracy,  lie  gave  their  names,  and  among  them  those 
of  the  (lefeiulants  Calvin  Oi'uiiston  and  David  Ormiston,  and 
testified  as  follows:  "While  they  were  there  (at  Calvin  Ormis- 
ton's  burn)  they  disguised  themselves.  They  put  soot  on  their 
faces,  and  said  that  they  were  going  to  tar  and  feather  Charley 
Blancliard.  They  g<»t  the  tar  and  feathers  ready.  They  turned 
their  coats  wrong  side  out.  and  some  of  them  their  caps  and 
punts.  I  did  not  see  the  feathers;  I  saw  a  sack  they  were  in. 
I  saw  the  tar  in  a  can." 

1^0  other  witness  testified  as  to  what  transpired  at  the  time 
and  place;  but  there  was  other  evidence  that  the  defendants 
were  engaged  in  the  conspiracy.  The  testimony  of  Patrick 
Welch  tended  to  show  that  Calvin  Ormiston  planned  the  con- 
spiracy, and  that  David  Ormiston  admitted  afterwards  that  he 
was  iii  it.  As  to  Charles  nrauuM*.  it  is  undisputed  that  he  was 
the  one  who  went  to  Planchard's  house  that  evening,  and  in- 
duced him  to  go  where  he  was  met  by  the  other  consi)irators 
and  where  the  tarring  and  feathering  took  place.  There  was 
evidence,  th  mi,  aside  from  that  of  "NVillard  "Welch,  tending  to 
show  Ihaf  file  Onnistons  and  others  must  have  assembled  some- 
where as  conspirators,  and  this  evidence,  we  think,  must  be 
regarded  as  eorroborative  of  the  testimony  of  Wilhird  AVeleh. 
This  is  enough  to  sustain  the  instruction. 

10.  The  defendants  asked  the  court  to  instruct  as  follows: 
"  If  you  find  the  facts  to  l)e  that  one  of  the  defendants  intended 
to  assault  and  tar  and  feather  Pdanchard.  and  the  others  merely 
aided  and  abetted  him  in  such  act  without  any  ae-reement  or 
understanding  previously  entered  into  by  them  for  that  ])ur- 
pose.  then  you  will  accjuit."  The  court  refused  to  so  instruct, 
and  the  defendants  assign  the  refusal  as  error.  The  undisputed 
evidence  shows  that  I'lanchai'd  was  waylaid  ujioii  a  public  high- 
way in  the  night-time  and  tarred  and  feathered  by  a  company 
consisting  of  about  nine  men.  more  or  less  armed  and  more  or 


if 

■■1A\ 


■J 


t 

1 

■    II 

! 

1 

|i 

is'l 

k 

■wt 

^i^^K 

' 

i  ^' 

1 

■: 

■ 

r^ 


122 


AMERICAN  CRIMINAL  REPORTS. 


less  disuuised.  It  would  have  been  absurd  for  the  court  to 
insti'uct  the  jury  that  they  might  find  that  tlie  tarring  and 
feathering  was  done  without  any  previous  understanding  among 
the  assailants. 

11.  The  defendants  asked  an  instruction  as  follows:  "Under 
the  indictment  proof  that  tlie  defendants,  or  two  or  more  of 
them,  before  the  alleged  assault  u\)on  I'lanchainl,  agreed  or 
combined  to  tar  and  feather  him,  and  in  pursuance  of  such 
agreement  or  combination  did  tar  and  feather  him,  is  not  suf- 
ficient  to  justify  a  conviction,  and  if  this  is  all  that  has  been 
estal)lished  by  the  evidence  you  will  acquit."  The  court  re- 
fused to  instruct  as  asked,  and  the  refusal  is  assigned  as  error. 
This  instruction,  as  we  understand,  was  asked  upon  the  tlioorv 
that  the  conspiracy  charged  in  the  indictment  was  a  conspiracy 
to  assault  with  intent  to  inllict  a  great  bodily  injury,  and  that 
to  tar  and  feather  a  ])erson  is  not  to  inllict  a  great  bodily  in- 
jury. JUit  in  our  opinion  the  defendants  were  not  entitled  to 
such  instruction.  It  is  true,  the  indictment  did  charge  a  con- 
spiracy to  assault  with  intent  to  inflict  a  great  bodily  injury. 
but  it  also  charged,  in  the  language  of  the  statute,  that  the  de- 
fendants "maliciously  conspii'ed  together  with  intent  wrong- 
fully to  injui'e  the  person,"  etc.  I'roof  of  a  conspiracy  to  tar 
iuid  feather  would,  in  our  oi)inion.  be  suilicient  to  sustain  tliis 
charge.  lUit  the  court  having,  po.ssibly,  some  doubt  upon  this 
lioint,  and  considering  that  there  was  evidence  of  a  cons[>iriicy 
to  assault  with  intent  to  inllict  a  great  bodily  injury,  went  so 
far  in  favor  of  the  defendants  as  to  charge  the  jury  that  under 
the  indictment  and  evidence  the  iiKpiiry  of  the  jury  sliouhl  lie 
limited  to  the  (juestion  as  to  whether  two  or  more  of  the  de- 
fendants conspired  to  injure  IManchard  by  assaulting  w  ith  in- 
tent to  inllict  a  great  bodily  injuiy.  Still,  the  defendants  arc 
not  satislicd.  They  contend  that  the  instruction  is  erroneous, 
for  the  reason  that  there  was  no  evidence  of  such  intent.  I'lit 
in  our  opinion  there  was  such  evidence.  Ulancliard  testitled 
that  his  as.saihmts  said  at  first  that  thev  were  •••oiuir  to  castrate 
him.  and  it  is  shown  also  that  one  of  them  called  for  a  knife, 
and  also  that  they  were  ai-med  with  one  or  more  revolvei's. 

12.  It  remains  t^o  be  stated  that  one  of  the  jurors  was  chal 
lenged  for  cause,  and  the  challenge  overruled.  The  defeiulants 
insist  that  their  challenge  was  well  taken.     The  juror  stated  in 


suhstance 
featliei'ing 
formed  an 
upon  furth 
whether  tli 
was  hearsa 
the  persons 
edge  of  the 
dence  ini])a 
ground  reli 
had  formed 
say  that  a 
that  tlie  o]ii 
not  u])on  sti 
knowledge. 
A'erdict. 

We  sec  n 
judgment  ii 

Rkkd.  J., 
for  dui)licit 
tent  to  inlli( 
as  it  ciiargc 
have  been  c 


Intiictmf.nt 

ERATH  )N'. 
lidMI'il  of 
of  till'  ('( 

that  Hum 

This  writ 


WOOD  t'.  STATE. 


123 


substaiico  tliat  lie  heard  rumors  concerning  the  tarring  and 
featlioiin!^  of  lUanchard  and  the  persons  engaged  in  it,  and  had 
forineil  an  o])inion  that  the  defendants  were  the  persons.  But 
upon  further  examination  he  stated  that  he  could  not  say 
Avliotlier  the  parties  who  told  him  were  posted  or  not;  that  it 
was  hearsay;  that  he  did  not  hear  what  he  did  hear  from  any  of 
the  persons  claiming  to  be  witnesses,  or  to  have  personal  knowl- 
edire  of  tiio  case;  and  that  he  thought  that  he  could  hear  the  evi- 
dence ini])artially,  and  render  a  true  verdict.  The  statutory 
ground  relied  upon  in  support  of  the  challenge  is  that  the  juror 
had  formed  an  unqualified  opijiion.  Code,  2772.  But  we  cannot 
sav  tliat  a-  juror  has  formed  an  unqualified  opinion  who  states 
that  the  opinion  which  he  has  formed  is  based  upon  hearsay,  and 
not  upon  statements  made  by  any  one  claiming  to  have  personal 
knowledge,  and  that  he  still  thinks  that  he  can  render  a  true 
verdict. 

"We  sec  no  error  in  any  of  the  rulings  of  the  court,  and  the 
judgment  must  be  affirmed. 

Rkki),  J.,  dissenting.  In  my  opinion  the  indictment  is  bad 
for  (liii)licity.  It  charges  the  derendants  witli  assault  with  in- 
tent to  inllict  a  great  bodily  injury,  as  distinctly  and  certainly 
as  it  charges  them  with  conspiracy,  and  under  it  they  could 
have  been  convicted  of  that  crime. 


"Wood  v.  State. 

(47  N.  J.,  461.) 

CONSPUiACV:  Indictment, 

iKBirTMKXT  FOn  CONSPIRACY  WITHOUT  CHAKOINO  A  CORRUPT  CONFKD- 
ER.vno.v.—  An  indictinent  for  roiispiraoy  against  tlie  munibors  of  a 
l)oaril  of  I'liosoii  fri'i'liolilurs  for  combining  to  vote  a  Muni  of  nionej-  out 
of  till'  coiiiity  fluids  in  favor  of  a  tliinl  person  is  bad,  not  charj^ing 
that  the  i'()iircd(n-atioii  was  corrupt,  or  th.it  the  tliird  person  was,  to  tiie 
knowledge  of  tlio  defendivnts,  disentitled  to  tiie  money. 

This  writ  brings  up  an  indictment  for  conspiracy. 

T.  I).  //<ir/i<'//  and  (\  G.  (tavrixo)},  for  prosecutors. 
A.  Tfiiijij  and  A'.  ./.  Jvnl'lnt^,  for  the  state. 


i 


124 


AMERICAN  CRIMINAL  REPORTS. 


TiKKD,  J.  The  indictment  before  us  charges  that  the  prose- 
cutors and  certain  others  -were  members  of  the  board  of  chosen 
freeholdei-s  of  the  county  of  Camden,  and.  having  the  control 
of  the  funds  of  said  county,  at  a  hwvful  meeting  of  said  hoard, 
did  unlawfully  vote  for,  order,  and  direct  the  payment  of  ^Ifio 
to  one  Morgan  by  the  county  collector  for  his  services  rendered 
in  and  about  the  cjunty  clerk's  office,  and  thereby  did  cuiise 
the  said  JNfo.'oan  ■  into  his  possession  unlawfully  the  said 

sum  out  of  the  i";  ot  .le  county  of  Camden.  And,  further, 
that  the  said  defendants  ivere  public  officers,  namely,  moinl)ere 
of  the  board  of  <  \\o''en  freoiiolders  of  Camden,  having  control 
and  manairt^ment  of  tu  fun.;  <  f  the  countv  of  Camden,  l)eing 
persons  of  evil  minds,  etc..  togrthci  with  divers  other  evil-dis- 
posed persons,  whose  names  are  unknown,  wickedly  devisinjf 
and  intending  to  unlawfullv  obtain  fi'om  thetreasurv  and  funds 
of  the  said  county  the  sum  of  i?<'>40.  unlawfully  did  cons])ire,  com- 
bine, confederate  and  i' >Tee  together,  between  and  ainonn^ 
themselves,  to  obtain,  accjuiro,  and  get  into  the  hands  of  the 
said  Eli  B.  Morgan,  out  of  the  funds  of  said  county,  the  said 
sum.  That  in  pursuance  of  the  last-nuMitioned  conspiracy,  com- 
bination, confederation  and  agreement,  the  said  defendants, 
well  knowing  that  the  said  Morgan  was  desirous  of  obtaining 
said  sum  out  of  the  treasury  and  funds  of  said  county,  did  vote 
for  the  following  resolution:  Resolved,  that  the  said  Kli  Mor- 
gan be  paid  the  sum  of  !?in(»  per  month  I>y  the  county  collrctor 
for  his  services  rendered  in  and  about  the  county  clerk's  office, 
said  salary  to  commence  . I une  1.  lss+.  That  the  said  resolu- 
tion was  adopted,  and  the  said  Aforgan  did  obtain  and  get 
into  his  possession  the  said  sum  of  !?()4<)  out  of  thetHNisuiy  and 
funds  of  the  county  of  ('amden.  That  the  said  conspiracy,  et 
ci't.,  were  then  and  there  made,  done  .and  pei'petrated  by  the 
defendants,  in  violation  of  their  duty  and  the  trust  I'eposed  in 
them,  and  of  their  oaths  as  members  of  the  board  of  chosen 
freeholders,  to  the  great  damage  of  the  county  of  Camden. 

The  above  is  the  substance  of  the  indictment,  containing  all 
the  material  charges  contained  therein,  witiiout  much  of  the 
verbiage  attending  criminal  pleading.  The  theory  wlrch  un- 
derlies this  indictment  presents  a  novel  phase  in  the  law  of 
criminal  conspiracy.  Stripped  of  all  verbiage,  the  only  vi(MV 
from  which  this  indictment  can  be  supported  is  this,  namely, 


WOOD  V.  STATE. 


125 


that  every  caucus  of  members  of  a  legislative  body,  at  which 
concerted  action  to  vote  for  an  object  which  is  illegal  is  resolved 
upon,  is  a  conspiracy.  The  novelty  of  this  application  ai)pear8 
from  the  fact  that  I  have  been  una1)le  to  tiiid  any  case  in  the 
books  of  reports  in  which  this  asi)oct  of  tlio  hiw  of  conspiracy 
has  been  discussed.  1  iiiiglit,  pcrlia[)s,  except  one  case  l)earing 
upon  the  hability  of  niombcrs  of  a  ]»ul)lic  body  for  an  illegal 
combination  in  regard  to  tlieir  olhcial  conduct.  Tliis  is  tlie  case 
oiCoiniiioinrcaltli  i'.('(i//ii(//n(/i,2  Va.  ('as.,4(!0.  In  this  case  there 
was  a  combination  between  two  justices  of  the  peace,  in  whom 
was  the  power  of  appointment  of  commissioners,  tliat  the  iirst 
justice  sliould  vote  for  a  certain  tliird  jjcrson  as  commissioner 
in  consideration  that  the  second  justice  should  vote  for  a  certain 
other  i)ersoii  as  cleric.  This  was  held,  when  executed,  to  i)e  in- 
dictable, and  it  seems  from  the  oj)inion  to  have  been  regarded 
as  indictable  as  an  illegal  confederation  without  regard  to  the 
execution  of  the  project. 

The  notion  upon  which  it  was  held  a  conspiracy  was  that  the 
combination  was  to  accom[)lisii  an  object  itiimieal  to  the  inter- 
est of  the  public,  namely,  to  a[)i)oiut  men  to  pul>licoHices  u])on 
some  ground  other  than  their  iituess  I'oi'  the  jx^sition.  This 
doctrine  wouhl  seem  to  fix  upon  all  parties  to  an  agreement 
which  is  void  as  against  })ublic  policy  the  character  of  conspir- 
ators; and  the  held  which  such  a  rule  wtjuhl  covjjr  is  so  exten- 
sive that  it  is  not  J-emarkable  that  the  case  stands  alojie,  and 
has  been  cited  without  conunendation,  if  not  with  dissent,  by 
such  authors  as  Dr.  Wharton.  That  case,  as  it  stands,  how- 
ever, is  analogous  to  the  present  case  in  that  theilrst  deals  with 
the  conduct  of  members  of  a  l)0(ly  to  whom  is  confided  the  ap- 
pointment of  pid>lic  olllcers,  and  this  case  deals  witli  the  action 
of  membei's  who  have  in  charge  the  moneys  of  the  puidic.  In 
regard  to  the  latter  aspect  of  this  (piestion,  while  it  may  be  ob- 
served that  the  vast  and  vague  held  now  covei'ed  by  the  law  of 
criminal  conspiracy  neeils  circumscribing  rather  than  expand- 
ing, yet  a  easr  >  eouceivabh^  where  a  combination  of  members 
of  such  a  body  as  a  boartl  of  chosen  freeholders,  the  object  of 
which  is  to  (h'fi-aud  the  county  by  their  otlicial  votes,  may  be 
criminal.  It  may  not  be  easy  to  exactly  define  by  a  general 
foruuila  what  elements  of  fact  are  essential  to  constitute  such 
a  combination  a  criminal  conspiracy;  but  it  nuiy  be  safely  said 


f'H  i 


126 


AMERICAN  CRIMINAL  REPORTS. 


that  the  motives  of  the  confederates  must  be  corrupt,  or  no 
criminality  can  attacli  to  such  a  confederation.  This  remark 
is  ilhistrated  by  tlie  case  of  People  of  Nrw  York  v.  Pn,,;!!^!^'}^ 
K  y.,  '^S.  Tlie  dofen(hints  were  commissioner^  of  cliaritiosof 
the  county  of  Kings,  and  were  indicted  for  consi)iring-  togotlicr 
to  omit,  refuse  and  neglect  to  advertise  for  supplies  as  nMiuired 
bv  statute.  Upon  the  trial,  the  judge  charged  that,  without 
regard  to  the  defendants'  ignorance  of  the  existence  of  the 
statute,  the  agreement  to  violate  the  act,  followed  by  conduct 
in  furtherance  of  the  agreement,  constitute*!  a  consiiiimy, 
This  was  held  error,  the  court  i-emarking  that  it  was  nut  (Miougli 
that  the  act  which  was  the  object  of  the  conspiracy  was  pro- 
hibited. The  confederation  must  !)e  corrupt.  The  actual  (■lini. 
inal  intention  })elongs  to  the  delinitioii  of  conspiracy,  auilimist 
be  shown  to  justify  a  conviction. 

On  turning  to  tiie  indictment,  the  substance  of  whicii  has 
been  set  fortli.  no  corrupt  C(jml»ination  is  charged.  T lie  cor- 
rupt pur])ose  of  cheating  the  county  is  not  set  forlli.  in  the 
forms  of  indictment  for  a  conspiracy  to  cheat,  the  word  ••  ciioiif ' 
im])lies  a  corrupt  act.  If  the  ))ur|)oses  of  the  combiiuuion 
had  Ijeen  set  out  so  that  it  appeared  tliat  the  design  was  to 
defraud  the  county,  the  mere  failure  to  use  the  word  "cor- 
ruptly," in  charging  the  coml)ination,  would  not  havo  hwii 
material.  I>ut  neither  is  the  confecU'racy  charged  to  liave  Ijoeu 
corrupt,  nor  do  the  i)urpos('s  and  acts  of  the;  coiifiMh'i'ates.  as 
set  forth,  show  a  coi'i'ui)t  piir[)ose.  The  charge  is  that  they 
unlawfully  conspired  to  get  into  the  liands  of  one  Morgana 
sum  of  money.  It  does  not  say  that  ^lorgan  was  not  iii!  ithM 
to  a  sum  of  money.  Xor  does  it  ciiai'g(^  tliat  the  defciidants 
knew  that  he  was  not  entitled  to  it.  'I'he  charge  tliat  thov, 
wickedly  devising  to  unlawfully  obtain  this  money,  etc.,  is 
meaningless  when  the  details  of  the  conspiracy  are  set  forth. 
by  wliich  it  does  not  api)ear  that  the  person  wlio  was  to  reci'ivo 
the  fund  was  disentitled  to  it,  or  that  tlu^  defrudants  sup- 
])osed  that  he  was  without  right  to  bo  so  paid.  'J'he  iVanu'  of 
this  indictment  is  entirely  dilferent  from  those  in  wliieli  a  gen 
eral  conspiracy  to  cheat  by  false  tokens  is  ehaiged.  This 
generality  of  charging  is  now  held  to  be  suiHcient.  lice  v.  GUI 
2  Barn.  &  Aid.,  204;  State  v.  Young  mid  SttitiiKbi/,  8  N'room, 
184;  2  Whart.  Prec.  of  Indict.,  607.     Even  if  such  a  cliuigr 


Tvere  foUowec 
cheat  was  to 
such  detailed 
not  involve  a 
is  in  this  ind 
entering  into 
sjiiracy. 

Two  other 
tions  to  quasi 
The  same  fan 
three  should 


i 


1.  CONSPIKACY 

ill(-:il.  as 
ii('ii's>iiry 
tl'llilcil  to 

2.  Sam K  — Col 

(Ifl'ciiihint 
dill  riiiis|ii 
iiitnit  tlif 
diu'  horsf 
iniiiiniT  s( 
iiiul  iir"|it' 
clicat  ;iii(l 
subslaiiti; 

3.  Falsk  nti:- 

of  anotlic 
nion  law 
IM'iiiti'Mtia 
a  tliinl  fli 
will  nut 

4.  Samk  — Co 

t!ic  ^;iHM 
I'alsi'  as.su 
arc  ;;ivi'ii 
cluccii.  I>_\ 
tioii  tif  tl 


TIIO^IAS  r.  THE  TEOPLE. 


127 


were  followed  by  details  of  the  method  in  which  the  alleged 
cheat  was  to  have  been  accomplished,  and  it  appeared  from 
such  detailed  statement  that  the  object  of  the  combination  did 
not  involve  a  cheat  at  all,  the  indictment  would  be  bad.  There 
is  in  this  indictment  a  failure  to  charge  a  corrupt  purpose  in 
cntei'in"'  into  the  agreement,  without  which  it  is  not  a  con- 
spiracy. 

Two  otlnn-  similar  indictments  were  before  us,  and  the  mo- 
tions to  quash  them  and  the  present  one  were  heard  together. 
The  same  fault  which  invalidates  this  appears  in  them,  and  all 
three  should  be  quashed. 


■f 


m,i 


11 


I'i 


to 


? 


Thomas  v.  Tui;  People. 

(113  111.,  531.) 

CoNsriHAcv;  ] iKildinoit  —  False  pretenses, 

1.  CoNSPii;.uv.— Wlicn-  tin-  net  to  lio  .accompliHlioil  by  a  oonspiracy  is 
illi';;al.  as  to  olilain  tlu'  j;(mi(1s  of  iinothfr  by  false  pretfu^es,  it  is  not 
iicifssary  to  s|i('(ily  in  lilt'  imlictniciit  tlic  means  by  wliicli  it  wiis  in- 
tcnilril  to  lie  ai'i'oiniilislu'd. 

2_  <^\jii.;_('(,iNT— iNnicT.MKNT.— So  it  count  in  an  indictment  tliat  the 
(liiVmlants.  oti,  ct)'..  at,  etc..  leloiiiously,  fraudulently  and  deceitfully 
dill  (•(inspire  and  ajcree  to;A'('tliei".  witii  the  fraudulent  and  malicious 
intent  tiien  and  there,  feloniously,  wroiiKt'idly  and  wickedly,  to  obtain 
one  liorse  of  the  vahie  of  !<?.").  and  describiuf^  otlier  property  in  like 
manner  souKht  to  be  obtained,  and  ^jivinji;  its  value,  tlie  personal  goods 
and  iMoperty  of  K.  C,  from  the  said  K.  (-.,  by  false  i>retenses,  and  to 
cheat  and  defraud  her,  the  said  K.  (.'.,  of  the  same,  contrary,  etc.,  is 
siilistantially  ^t'od. 

3.  Fai.sk  1'|{i;ti:nsks  —  MiSDi.MKANoii.— A  conspiracy  to  obtain  the  goods 

of  another  by  false  pretenses  being  oidy  a  misdemeanor,  both  at  com- 
mon law  and  by  our  statute,  though  piniishable  by  continement  in  the 
penitentiary,  an  indictment  charging  such  oll'ense  in  two  counts,  with 
a  third  charging  the  obtaining  of  the  same  g(jods  by  false  |irett»*ises. 
will  not  lie  obnoxious  to  the  olijectioii  of  a  misjoinder  of  c(Mints. 

4.  Samk  — ('(iN\'icTi(iN. — ^  AVhere-'vcral  jiersons  conspire  together  to  obtain 

the  goods  of  another  by  I'alx'  preti'ii.ses,  and  obtain  such  gomlsupcm  the 
false  assurance  that  one  of  ibem  has  a  clear  title  to  cei'tain  lots  which 
are  given  in  exchange,  tin'  fact  that  the  owner  of  tiie  g"0( Is  was  in- 
duced, by  his  contidence  in  the  false  assiu'ances,  to  forego  anexamina- 
tiim  of  the  reiords,  which  would  have  shown  the  defeudants  had  no 


12S 


AMERICAN  CRIMINAL  REPORTS. 


good  title  to  convey,  ami  was  negligent  in  relying  uiwn  the  representa- 
tions made,  will  not  prevent  a  conviction  of  the  defendants  so  conspii. 
ing  together. 
6.  Motion  to  (^uash. —  A  general  motion  to  ((ua.sh  an  indictment  contain- 
ing several  counts  should  he  overruled  if  any  count  thereof  is  good. 

6.  One  ooon  count  supports  vkuuict.— A  verdict  timling  the  defendants 

guilty  (if  a  consjiiracy  to  ohtuin  goods  hy  false  pretenses,  under  an  in- 
dictment containing  two  counts  for  such  offense,  will  be  sustained  if 
either  of  the  counts  is  good. 

7.  Sasik  —  Vkkdict.—  Where  an  indictment  contains  three  counts,  two  of 

them  charging  a  conspiracy  to  obtain  goods  by  false  pretenses,  and  the 
third  for  olitaining  goods  by  false  pretenses,  a  verdict  linding  the  de- 
fentiants  guilty  of  the  coi!si)iracy  to  obtain  the  goods  by  false  pretenses, 
saying  nothing  as  to  the  third  count,  is  eciuivalent  to  a  linding  of  not 
guilty  as  to  that  count. 

8.  Punishment  of  misdemeanou. — It  is  com))etent  for  the  legislature  to 

provide  that  a  misdemeanor  may  be  punished  by  conlinement  in  the 
penitentiary. 

Writ  of  error  to  tlie  criminal  court  of  Cook  county,  the  Hon. 
Elliott  Anthony,  ju<lg<?,  presidino-. 

Ilr.  C.  F.  Iirm)cl\  for  tho  ])l!iintiff  in  error. 
iV/'.  JnVim  S.  (rnnnell,  stiite's  Jittorney.  an<l  Mr.  John,  Oil- 
hows,  for  the  people. 


Mr.  Chief  Justice  Schoi.i.iki.d  delivered  the  opinion  of  the 
court : 

Edward  F.  Thomas  and  AVilliam  (r.  Afurpliy  were  convicted 
in  the  criminal  court  of  Cook  county  of  a  cons))iracv  to  ol)taiii 
goods  by  false  pretenses  from  one  Kate  Carl)errv.  by  the  vev 
diet  of  a  jury,  and  thereby  ])unislnnent  of  the  fornun'  wa:; 
fixed  at  conlinement  in  the  jjenitentiary  for  the  term  of  three 
years,  and  that  of  the  latter  at  paying  a  fine  of  ^:5<i(>.  The 
court  overruled  a  motion  for  a  new  trial  and  gave  judgment 
upon  tliis  verdict.  This  writ  of  error  is  prosecuted  b\'  Thoiuas 
alone. 

Several  grounds  are  urged  upon  Avhich  wo  are  asked  to  re- 
verse this  judgment,  and  such  of  them  as  we  deem  material 
shall  be  briefly  considered. 

Fii'd.  It  is  contended  the  court  erred  in  overruling  the 
motion  to  quash  the  indictment.  Since  the  motion  was  gen- 
eral to  the  entire  indictment,  it  was  properly  overruled  if  either 


THOMAS  V.  THE  PEOPLE. 


120 


count  was  good ;  and  since  tlio  verdict  expressly  finds  the  de- 
fendants j,aiilty  of  a  conspiracy  to  obtain  goods  l)y  false  pre- 
tenses, saying  nothing  as  to  the  third  count,  which  is  for 
obtaining  goods  hy  false  pretenses  simply,  this  is  equivalent 
toa  fiiuling  of  not  guilty  under  tliat  count.  Sfo/fz  r.  Pcojf/e, 
4  Scam.,  ini»;  i'/i<iiiibcr)<  i\  P<i>i>h>,  id.,  I^.'Sfi.  And,  therefore,  if 
eltlier  of  tli(?  counts  for  conspiracy  bo  good,  it  will  sustain  the 
verdict.  Li/odk  v.  Peojdi',  OS  111.,  27<),  and  cases  cited.  Tlic 
liret  count,  under  the  ruling  in  this  state,  whatever  nitay  bo 
decided  elsewhere,  is  clearly  good.  To  obtain  goods  by  false 
pretenses  is,  to  every  appreliension,  an  illegal  act;  and  the 
rule  hero  is,  wliero  the  act  to  be  accomplished  by  the  con- 
spiracy^ is  illegal,  it  is  unnecessary  to  specify  the  means  by 
which  it  was  intended  to  bo  accomplished.  Johnmn  v.  Pi'ojdc, 
22  III.,  ;^  11;  Siinth  V.  l\>oi>li',  2.5  id.,  17;  dmen.  v.  People,  U 
id,  34S.  Tlie  first  count  in  the  ])resent  indictment  is,  in  sub- 
stance, i  lent  ical  with  the  count  in  Johnsiniv.  People,  nujira, 
and  which  is  \.\wvt\  hehl  to  be  good.  And  in  Cole  v.  People,  84 
111.,  210  (a  case  in  the  decision  of  which  Mr.  Justice  Dickey 
and  the  wi'ittM'  of  this  opinion  did  not  then  and  do  not  now 
concur^,  the  court  went  still  farther  and  held,  where  the  act  to 
be  acconi])lislied  was  not  in  itself  illegal,  but  the  conspiracy 
was  to  accomplish  it  l>v  illegal  means,  the  illegal  means  need 
not  he  set  out,  but  that  the  offense  only  need  be  set  out  in  the 
terms  and  language  of  tho  Criminal  Code,  or  so  plainly  that 
the  nature  of  the  offense  may  be  easily  understood. 

Seeonil.  A  motion  in  arrest  of  judgment  was  made  and 
overruled,  and  it  is  contended  this  was  error,  because,  first,  if 
the  oU'euse  of  which  the  defendants  were  convicted  was  felony, 
then  the  third  count,  which  was  only  for  a  mi.sdemeanor, —  that 
of  obtaining  goods  by  false  pretenses, —  was  imi)roperly  joined ; 
and  second,  if  the  otfense  of  which  they  were  convicted  was 
not  felony,  then  the  punishment  imposed  was  im])roper.  With- 
out at  all  conceding  that  a  count  for  a  misdemeanor  can  under 
no  circumstances  be  joined  with  a  count  for  felony,  it  is  suffi- 
cient for  tho  present  to  observe  the  offense  of  which  tho  de- 
fendants were  convicted  was  not  felony  at  common  law  (2 
Kishop  on  Crim.  Law  (4th  ed.),  sec.  231),  and  it  is  not  made 
felony  liy  our  statute,  and  so  is  necessarily  a  misdemeanor. 
Vol.  V  — 9 


^W. 


130 


AMKRICAN  CRIMINAL  REPORTS. 


Lamhln  H  al.  v.  I\oj>J,;  01  111.,  501.  All  tlio  counts  bciiif,'  f„r 
misdomoiinoi-s  (und  that,  too,  iniinifcstly,  for  the  saiiKi  mistle. 
meanor,  stated  in  diiroi-cnt  ways),  thori;  was,  oven  on  th(>  tln'on 
of  the  counsel  for  plaintiff  in  error,  no  misjoinder.  Tiie  olfciiso 
bein;,'  a  misdemeanor  only,  why  the  punisluneiit  imposed  was 
in.[)roper,  we  cannot  divine.  It  was  certaiidy  competitiit  for 
the  le;,'islature  to  provide  that  a  misdtMueanor  mi«;ht  Ix;  ]nin- 
ished  by  conlhiement  in  the  jjtMiilentiary.  It  was  so  pr,)viileil 
in  the  statute,  and  this  verdict  is  within  the  meaning  aud 
intent  of  that  statute. 

Third,     We  are  unable  to  say  that  the  evidence  does  m\ 
sustain  the  verdict.     The  prosecuti-ix,  Mrs.  Tarbcrry,  had  u 
small  stock  of  family  groceries,  which  she  advertised  to  sell  or 
trade.     The  defendant  Thomas  responded.     lie  was  aided  bv 
the  defendant  Murphy  in  ol»tainin<^  her  conlidence  and  in  con- 
summating the  scheme  l)y  which  i)oss(>ssion  was  got  of  her 
goods.     Tl'onnif.  professed  to  own  certain  city  lots,  and  these 
she  agreed  to  tale  for  her  goo<ls.     lie  represented  his  title  to 
be  good,  and  the  property  to  b(^  clear  of  incund)rances.    V,\ 
these  nuians  he  go'  i)oss(;ssion  of  her  goods.     lie  neith(>r  owned 
the  lots,  nor  was  able  to  procure  a  de<Hl  conveying  the  legal 
title  to  them  to  hci,  —  and  this  want  of  title  and  inability  the 
defendants  knew  when  the  pretended  trade  was  made.    The 
only  (piestion  raised  uj)on  the  facts  <lemanding  attention  is. 
whether  the  negligence  of  the  prosecutrix  iu  not  having  the 
records  examined  in  respect  of  the  title  can  bo  urged  as  a  de- 
fense.    We  think  it  does  not  lie  in  the  mouths  of  these  defend- 
ants to  say  that  because,  by  their  artiiice,  they  inspired  an 
unmerited  confidence,  they  are  guiltless.    The  offense  is  the 
combination  to  obtain  property  by  false  pretenses;  and  the 
very  object  might  be,  and  often  is,  to  so  influence  the  party  as 
to  prevent  the  accuracy  of  the  i)retenses  being  tested.     Whether 
one  owns  property  is  a  fact.    The  truth  in  regard  to  it  might. 
undoubtedly,  be  disclosed  by  the  record,  but  it  might  equally 
be  disclosed  by  the  declarations  of  the  party;  and  the  most 
dangerous  artiiice,  and  that  against  which  it  is  most  important 
the  law  should  protect  f^.aiple-minded  and  credulous  people,  is 
that  whereby  they  are  induced  to  forego  all  investigation,  and 
trust  implicity  to  the  trickster.    2  Whart.  on  Crim.  Law  (7th 


(.d.sw.  21 '2^ 
The  judgnie 


Note- Till'  fii 

1M^;5,  oih'  Mrs.  t  ii 

Htrcet.  in  tlu'  city 

tolioraiivt'rtist'iii 

ing:    "Ifyouwi 

frcoof  iiicuniliriii 

present  vp'      'ii< 

118,  Soul  'e' 

Tliati..  "I 

ri'Cfived  thvouKli 

printed  lieadiiih'  < 

T.  were  tlii)  initi 

received  tliis  li-tti 

his  hand  a  satcl 

around  Jiiid  exaii 

W..S  selling;  g()od> 

the  party  wlio  Iiii 

re,si)eetal)le  and  \ 

was  transacting  i 

in  and  .ilioul  ("1: 

which  he  ownid 

double  in  value  i 

tiiey  were  dear  ( 

vahie  of  the  stix' 

in  tlie  lots  at  !|!Ori 

in  case  of  trade, 

al)le  lier  to  pay  » 

take  back  a  deeil 

acquainted  witli 

send  a  man  to  Ic 

came.    She  was 

interview  is  as  f 

'•  I  was  down 

ing  and  talking, 

trade  with  this  J 

and  I  says,  '  Wli 

fine,  square  old 

'  he  is  a  great  bi 

of  course,  I  thoi 

Murphy;  'why, 

was  from  Cork ; 

me  on  the  slioul 

Irishman,  and  1 

talked  like  tha 


THOMAS   V.  THE  PEOPLE. 


131 


(.(l..s('e.  21  lis;  r;>W('/i,  cf  oJ.  r.   PcnpU,  U  111.,  ;US;  State  r. 
Jf'inilii;/.  7^  N.  ('.,  -^tio;  '^t"f'  '••  J^ow,  .33  Maine,  41>8. 
Tlio  jii(I;:iii('iit  is  atlirmcd. 

Judfj/txnt  affirmed. 

\,-„TK.— Tlic  fiuts  in  tliis  case  an'  tlint  in  the  lattor  imrt  of  Novoiiiber. 
\^^X  iiiH'  Mrs.  I  iirlicriy  was  llic  owiut  of  a  f^roccry  store,  on  South  Clark 
street,  in  tlie  city  <if  Chicago;  tliat  slie  advertiswl  it  for  Hale,  and  in  answer 
t(i  iier  ailvertisciiiiiit  slif  rcrciv  t-d  throiiKii  the  mail  a  letter  in  words  follow- 
iiiK:  "  If  .'^'•"'  "■'"  t'''"'i'  your  grocery  for  gooil  lots  and  cash  —  the  lots  are 
free  of  iiicuniliraiiccs,  and  ciiii  lit'  st)ld  for  c;i«h  now,  and  will  double  tlieir 
jireseiit  vj-'  ii  two  years,—  write  me  if  you  mean  business.  H.  C.  T.,  box 
IIS,  Soul  'ewood,  C<M»k  county.  111." 

Tliat  1..  iiad  an  office  in  the  city  of  Chicago ;  that  the  note  which  she 

received  throuKli  the  mail  w;us  in  the  handwriting  of  Thomas;  that  the 
printed  iieudiiiK  of  his  jihu'C!  of  business  was  torn  off,  and  the  letters  II.  c;. 
T.  were  the  initials  of  his  wife,  Harriet  C.  Thomas;  that  shortly  after  she 
received  this  li-tter,  Thomas  came  to  her  place  of  business.  He  carried  in 
his  Iiand  a  satcliel,  similar  to  those  used  by  commercial  travelers,  lot)ked 
arounil  anil  examintHl  her  store  ami  its  contents;  that  she  asked  him  if  lie 
w.^sselliiif^Koods,  to  which  he  answered  no,  but  was  btiying ;  that  he  was 
the  party  who  liiid  answered  her  advertisement;  that  he  looked  like  a  very 
ri'si)i'daiile  and  wealthy  man,  and  talked  alK)ut  the  enormous  business  he 
was  transacting  and  the  number  of  lots  and  parcels  of  l.-md  which  he  owned 
in  and  about  ("liicago  and  other  places;  that  he  told  her  of  the  two  lots 
which  he  owned  in  South  Chicago ;  that  they  were  worth  $700,  and  would 
double  in  value  in  two  years;  that  the  title  to  the  lots  was  jHirfect,  and  th.tt 
they  wore  clear  of  all  incund>rances;  that  after  talking  alxnit  the  probable 
value  of  the  stoik  of  groceries,  fixtures,  horse,  wagon,  etc.,  he  agreed  to  put 
in  the  lots  at  ^fM,  and  that  either  party  should  pay  the  difference  in  cash, 
in  case  of  trade,  and  that  he  wouUl  advance  her  $200  cash,  which  would  en- 
able her  to  pay  any  balance  and  to  meet  her  present  needs ;  that  he  would 
take  back  a  di'ed  of  trust  on  the  lots  for  security,  etc. ;  that  a&  he  was  not 
acquainted  with  the  valueof  the  fixtures  and  the  horse  and  wagon,  he  would 
Bend  a  man  to  look  at  them ;  that  in  a  day  or  so  after  this  the  man  Murphy 
came.  She  was  washing  down  stairs  at  the  time.  Her  narrative  of  the 
interview  is  as  follows : 

"  I  was  down  stairs  washing,  and  he  stood  there  and  looked  at  me  work- 
ing and  talking,  and  I  said  now  Mr.  Murphy.  I  knew  I  was  about  making  a 
trade  with  this  Mr.  Thomas,  but  I  didn't  know  anything  about  him,  of  course, 
and  I  says,  '  What  kind  of  a  man  is  this  Mr.  Thomas,'  and  he  says,  '  he  is  a 
fine,  square  old  man;  a  fine  old  man.'  I  said,  '  Is  he?'  '  Oh,  yes,'  he  said, 
'  he  is  a  great  business  man  —  does  i)iles  of  business  all  over ; '  he  says,  '  well 
of  course,  I  thought  so,'  so  I  ask(nl  him  his  name,  and  he  said  his  name  was 
Murphy ;  '  why,'  said  I,  '  you  must  be  an  Irishman? '  '  No,  my  grandfather 
was  from  Cork ; '  '  well,  there  is  where  I  came  from,'  says  I,  and  he  patted 
nie  on  the  shoulder,  and  said  they  were  good  jieople,  and  his  father  was  an 
Irishman,  and  he  always  had  a  liking  for  jwople  that  were  Irish ;  and  we 
talked  like  that,  and  he  was  very  jolly,  and  commenced  joking,  and  I 


I 


tm 


AMERICAN  CRIMINAL  REPORTS. 


thought  he  was  a  very  likely  man,  and  a  poor  man  —  in  tircumsLiiiocs  like 
mine  —  he  would  stop  and  tell  me  if  there  was  anything  wron<^,  and  put  me 
on  the  ix)int." 

That  in  pursuance  of  these  and  other  conversations  liad  with  Thomas  ami 
Murphy,  a  trade  was  agreed  upon,  and  consummated.  And  upon  examina- 
tion it  was  fouml  that  the  title  to  the  lots  which  she  received  in  trade  pioveil 
worthless,  and  the  property  was  incuudjered  with  tax  sales  and  tax  deeds  to 
various  persons,  etc. 

THE  INDICTMENT. 

State  op  Illinois,  Kg 
Cook  County.       ' 

Of  the  March  term  of  the  criminal  court  of  Cook  county,  in  said  county 
and  state,  in  the  year  of  our  liord  1884. 

The  grand  jurors,  chosen,  selected  and  sworn,  in  and  for  the  coiiutjof 
Cook,  in  the  state  of  Illinois,  in  the  name  and  hj'  the  authority  of  the  peo- 
ple of  the  state  of  Illinois,  upon  their  oaths  present  that  Edward  F.  Tlidinas 
and  William  G,  Murphy,  late  of  the  county  of  Cocdt,  on  tlie  Ist  day  (if  De- 
cember, in  the  year  of  our  Lord  1883,  in  said  county  of  Cook,  in  tlic  state 
of  Illinois  aforesaid,  feloniously,  fraudulent!:,  and  deceitfully,  diil  cimsiiire 
and  agree  together,  with  the  fraudulent  and  malicious  intent,  then  and 
there,  feloniously,  wrongfully  and  wickedly,  to  obtain  one  horse  of  the  value 
of  $75,  one  wagon  of  the  value  of  .js'2.'),  twenty-five  dozen  lanni'd  goods uf 
the  value  of  $50,  one  hundred  boxes  of  soap  of  the  value  of  ^25,  one 
hundred  pounds  of  soap  of  the  value  of  $25,  one  hundred  bars  of  soap  of 
the  value  of  $25,  one  hundred  packages  of  bluing  f)f  the  value  of  .*10,  one 
hundre'  jwunds  of  teas  of  the  value  of  $25,  three  hundred  pounds  of  sugars 
of  the  value  of  $30,  and  divers  and  sundry  groceries,  dry  goods,  notions  and 
fixtures  containeil  in  her  grocery  store  situated  on  Clark  street,  in  the  city 
of  Chicago,  in  .said  county  and  st.ite,  a  more  particular  description  of  which 
said  groceries,  dry  goods,  notions  and  fixtures  is  to  said  grand  jurors  un- 
known, of  the  value  of  $.")80,  the  personal  goods  and  property  of  one  Kate 
Carberry,  from  the  said  Kate  Carberry,  by  false  pretenses,  and  to  cheat  and 
defraud  her,  the  said  Kate  Carberry,  of  the  same,  contrary  to  the  statute 
and  against  the  pe.ice  and  dignity  of  the  same  people  of  tiie  state  of  Illinois, 

(Second  count.)  The  grand  jurors  aforesaid,  chosen,  selected  and  sworn, 
in  and  for  the  county  of  Cook,  in  the  state  of  Illinois,  in  the  name 
and  by  the  authority  of  the  peoidc  of  the  state  of  Illinois,  ujxm  their  oaths 
aforesaid,  do  further  present  that  Edward  F.  Thomas  and  William  (J.  Mur- 
phy, late  of  the  county  of  Cook,  on  the  Ist  day  of  December,  in  the  year  of 
our  Lord  1883,  in  said  county  of  Cook,  in  the  state  of  Illinois  aforesaid, 
feloniously,  fraudulently  and  deceitfully,  did  conspire,  c.  nbine,  confeder- 
ate and  agree  together,  with  the  fraudulent  and  malicious  intent,  then  and 
there,  feloniously,  wrongfully  and  wickedly,  to  obtain  one  horse  of  the 
value  of  $75,  one  wagon  of  the  value  of  $2",  twenty-five  dozen  of  canned 
goods  of  the  value  of  $50,  one  hundred  boxes  of  soap  of  the  value  of  .|2), 
one  hundred  jwunds  of  soap  of  the  value  of  $25,  one  hundred  bars  of  soap 
of  the  value  of  $25,  one  hundred  i)ackages  of  bluing  of  the  value  of  |10, 
one  hundred  pounds  of  teas  of  the  value  of  $25,  three  hundred  jwundsof 
BUgai's  of  the  value  of  $30,  and  divers  and  sundry  articles  of  groceries,  dry 


THOMAS  V.  THE  PEOPLE. 


133 


eoods  notions  and  store  fixtures  of  the  value  in  all  of  1580.40,  the  personal 
coals  chattels  anil  jiropi-rty  of  one  Kate  Carberry,  situated  in  the  grocery 
and  pTeniisos  of  the  said  Kate  Carberry  on  South  Clark  street,  in  the  city  of 
Chicaco,  in  ^''^  t^ounty  aforesaid  —  a  more  definite  description  of  said  articles 
of  CTocoi it'fi,  (hy  Roods,  notions  and  fixtures  is  to  the  said  jurors  unknown  — 
from  the  said  Kate  Carberry,  by  false  pretenses,  and  to  cheat  and  defraud 
the  said  Katr  Carberry  of  the  same.  And  the  jurors  aforesaid,  on  their 
oaths  aforesaid,  do  further  present  tluit  in  further  pursuan<!e  of  and  accord- 
in"  to  tlie  said  conspiracy,  combination,  confederation  and  agreement  among 
them,  tlu!  sai<l  Edward  F.  Tliomas  and  AV^illiam  G.  Murjdiy  had,  as  afore- 
said. afti'r\'  anls,  to  wit,  on  the  day  and  year  aforesaid,  in  the  county  afore- 
said, tIiey,tiio  said  Edward  F.  TJiomas  and  William  (}.  Murphy,  feloniously, 
knowingly  and  designedly  did  falsely  jm'tend  to  the  said  Kate  Carberry 
that  two  certain  lots  of  real  estate,  to  wit,  lots  2:$  and  34  in  block  14,  known 
asRussel's  sulxlivision,  being  the  .soiitli  lialf  of  tlie  southeast  (piarter  of  sec- 
tion IS,  town  ;n  north,  range  l.T  east  of  tlie  third  principal  meridian,  in 
Cook  county,  state  of  Illinois,  wliicli  tlie  said  Edward  F.  Thomas  and  Will- 
iam 0.  Muipliy  proposed  to  trade  and  did  trade  to  the  said  Kate  Carberry 
for  the  personal  goods,  chattels  and  property  of  her,  the  said  Kate  Carberry 
aforesaid,  and  of  the  value  aforesaid,  wire  two  lots  of  great  value,  to  wit, 
of  the  value  of  i?Cr»0;  that  the  said  Edward  F.  Tiuimas  was  tiieu  and 
there  the  alisolnte  owner,  to  wit.  the  owner  iu  fee-simple,  of  said  two 
lots;  that  the  title  to  said  two  lots  was  then  and  there  a  good  and 
perfect  title;  that  said  two  lots  were  free  and  clear  of  all  liens  and  iu- 
rumbrances,  and  that  lie,  the  said  Edward  F.  Thomas,  would  convey,  and 
cause  to  lie  conveyed,  to  the  siiid  Kate  Carberry,  by,  to  wit,  a  proper  deed 
of  conveyance,  a  gooil  and  perfect  title,  to  wit,  a  title  in  fee-simple,  then 
and  there  to  said  two  lots;  whiidi  said  false  pretenses  were  then  and  there 
made  by  the  said  Edward  F,  Tliomas  and  William  G.  Murpliy  with  ihe  de- 
sign and  for  the  purpose  of  inducing  the  said  Kate  Carberry  to  excliange 
and  deliver  the  said  personal  goods,  chattels  and  property  to  the  said  Ed- 
ward F.  Thomas  and  William  G,  Jlurphj-  for  the  said  two  lots;  and  the  siiid 
Kate  Carberry,  relying  upon  and  believing  the  said  false  pretenses  to  be 
true,  and  being  deceived  liu  reby,  was  then  and  tliere  induced  by  reason 
thereof,  on  receiving  from  the  said  Edward  F,  Tliomas  and  William  G. 
Murphy  a  deed  of  conveyance  pmporting  to  convey  to  lier,  the  said  Kate 
Carberry,  the  title  to  the  said  lots,  and  which  the  said  Edward  F.  Thomas 
and  William  (i.  Murphy  then  and  tliere  represented  diil  convey  to  the  said 
Kate  Carberry  a  good  and  jH'rfect  title  to  said  lots,  to  exchange  and  deliver 
the  said  jiersonal  goods,  chattels  and  property  to  the  said  Edward  F.  Thomas 
and  William  CI.  Murphy  therefor;  by  wliich  said  false  pretenses  the  said 
Eklward  F.  Thotniis  and  William  G.  Murphy  then  and  there,  in  pursuance 
of  said  conspiracy,  combination,  confederation  and  agreement  amongst 
them,  had  as  aforesaid,  with  the  fraudulent  and  ma'.icioua  intent  then  and 
there  to  cheat  and  defraud  the  said  Kate  Carlierry,  feloniously,  wrongfully 
and  wickedly,  did  then  and  there  obtain  the  said  personal  goods,  chattels 
and  proiierty  from  the  said  Kate  Carberry,  wheresis,  in  truth  and  in  fact, 
the  said  two  lots  of  real  estate  were  not  then  and  there  worth  in  value  the 
tiiim  of  |050,  or  any  other  sum  to  exceed  the  Bum  and  value  of  |300,  as 


>  ■■'. 
i 


idi 


AMERICAN  CRIMINAL  REPORTS. 


they,  the  said  Edward  F.  Thomas  ami  William  O.  Murphy,  did  then  anl 
there  so  falsely  protend  to  tlio  said  Kate  Carberry ;  and  wherexs,  in  trutli 
and  in  fact,  the  said  Edward  F.  Thomas  was  not  then  and  there  the  aho. 
lute  owner,  to  wit,  the  owner  in  fee-simple,  of  said  two  lots,  as  Uicy,  tlie 
said  Edward  F.  Tliomas  and  William  G.  Murphy,  did  then  and  tlioro  su 
falsely  pretend  to  the  said  Kate  Carberry;  and  whereas,  in  truth  ami  ia 
fact,  tlie  said  Edward  F.  Tliomas  had  not  then  and  there  a  j^ood  and  i^ifiit 
title  to  said  lots,  as  they,  the  said  Edward  F.  Thonuis  and  Willinm  (J.  JIur- 
phy,  did  and  there  so  falsely  pretend  to  the  said  Kate  Carberry;  anl 
whereas,  in  truth  and  in  fact,  the  said  two  lots  wore  not  thou  and  tlioiv 
free  and  clear  of  all  liens  and  incumbrances,  as  tliey,  the  said  Edward  F. 
Thomas  and  William  G.  Murphy,  did  then  and  there  so  falsely  protend  to 
the  said  Kate  Carberry;  and  whereas,  in  trutli  and  in  fact,  the  said  dwdot 
conveyance  which  the  siiid  Edward  F.  Tliomas  and  William  G.  Murphy  dc. 
livered  to  the  said  Kate  Carlierry,  purpt)rting  to  convey  the  title  to  the  sail 
lots  to  her,  the  sjiid  Kate  Carberry,  did  not  then  and  there  convey  to  tlie 
said  Kate  Carberry  a  good,  clear  and  perfect  title  to  her,  tlie  said  Kale 
Carberry,  to  said  lots,  as  they,  the  said  Edward  F.  Thomas  and  William 
G.  Murphy,  did  then  and  there  so  falsely  protiMid  to  the  said  Kate  Cariiwrf ; 
and  whei'oas,  in  truth  and  in  fact,  the  said  deed  of  conveyance  wliich  the 
said  Edward  F.  Thomas  and  William  G.  Murphy  then  and  there  delivered 
to  the  said  Kate  Carberry,  and  which  the  said  Edward  F.  Thomas  and  AVili- 
iam  G.  Murphy  then  and  there  represented  to  the  said  Kate  Carbeny  con- 
veyed to  her,  the  said  Kate  Carberry,  then  and  there,  a  good  and  perfect 
title  to  said  lots,  did  not  then  and  there  convey  to  the  said  Kate  Carlierrya 
good  and  perfect  title  to  said  lots,  as  they,  the  said  Edward  F.  TliDniasanJ 
William  G.  Murphy,  did  then  and  there  so  falsely  pretend  to  the  said  Katt.' 
Carberry;  and  the  said  Edward  F.  Thomas  and  William  G.  Murphy  then 
and  there  well  knew  that  the  said  pretenses,  and  each  and  every  of 
them,  so  falsely  made  as  aforesaid  to  the  said  Kate  Carl  erry  as  afuresaiJ, 
to  be  then  and  there  false,  contrary  to  the  statute,  and  against  the  peace 
and  dignity  of  the  same  people  of  the  state  of  Illinois. 

vT!'v,d  count.)  The  grand  jurors  aforesaiil,  chosen,  selected  and  sworn, 
in  and  for  the  county  of  Cook,  in  the  name  and  by  the  authority  ol  the  peo- 
ple of  the  state  of  Illinois,  upon  their  oaths  aforesaid,  do  further  present 
that  Edward  F.  Thomas  and  William  G.  Murjihy,  late  of  tlie  county  of 
Cook,  on  the  1st  day  of  December,  in  the  year  of  our  liord  IHSII,  in  saiJ 
county  of  Cook,  in  the  state  of  Illinois,  aforesaid,  feloniously,  knowingly 
and  designedly,  did  falsely  protend  to  one  Kate  Carberry  that  two  certain 
lots  of  real  estate,  to  wit,  lots  23  and  24  in  block  14,  known  aw  Uiissi  I's  suii- 
division,  being  the  south  half  of  the  southeast  quarter  of  section  IH,  town 
37  north,  range  15  east  of  the  third  laincipal  nn.'ridian,  in  ('ook  county, 
state  of  Illinois,  which  the  said  Edward  F.  Thomas  and  William  G.  Murpliy 
proposed  to  trade,  and  did  trade,  to  the  said  Kate  Carberry  for  certain  cliat- 
tel  property,  to  wit,  one  horse  of  the  value  of  )|;7r);  one  wagon  of  the  value 
of  $25;  twenty-five  dozen  of  canned  goods  of  the  value  of  $50;  one  hun- 
dred boxes  of  .soap  of  the  value  of  $35 ;  one  hundred  pounds  of  soup  o( 
the  value  of  |25;  one  hundred  bars  of  .soap  of  the  value  of  $25;  one  Imn- 
dred  packages  of  bluing  of  the  value  of  $10;  one  hundred  pounds  of  teas 


THOMAS  V.  THE  PEOPLE. 


135 


of  tlie  value  of  $35;  throe  lumdrcd  pounds  of  sugars  of  the  value  of  $30; 
•inil  (livers  .nnd  sundry  articles  of  gi'oceries.  dry  goods,  notions  and  otore 
fixtures,  of  the  value  of  .$580.40,  the  i)erRonal  goods,  chattels  and  jiroperty 
(if  one  Kate  L'arheriy  — u  more  definite  de.scrijition  of  said  ailicks  of  gro- 
(fries  dry  goo<ls,  notions  and  tixtures  is  to  the  said  jurors  unknown,—  sit- 
uated ia  the  grocery  store  and  premises  of  her,  the  said  Kate  Carherry,  on 
Smith  Clark  street,  in  the  city  of  Chicago,  in  said  Cook  county,  the  property 
of  the  said  Kate  Cnrherry,  were  two  lots  of  great  value,  to  wit,  of  the  value 
of  lOnO:  tiiat  tile  said  Edward  F.  Thomas  w;i«  then  and  there  tlie  ahsolute 
owner  to  wit,  then  and  tliere  the  owner  in  fee-simple,  of  said  last  ini-ntioned 
lots*  tiiat  th(!  title  to  said  last  mentioned  lots  wa.s  then  and  there  a  good  and 
perfect  title ;  tliat  sai<l  Iiust  mentioned  lots  were  tlufu  and  there  free  and  clear 
(if  all  liens  and  iiicunihrances,  and  that  a  clear  and  perfect  title  would  be  then 
and  there  conveyed  to  her,  the  said  Kate  Carherry,  by  deed  of  conveyance, 
and  that  a  good  and  p(!rf(!Ct  title  to  said  lots  was  then  and  there  conveyed 
to  the  said  Kate  Carherry  by  a  deed  of  conveyance  then  and  there  delivered 
to  the  said  Kate  Carherry  by  the  said  Edward  F.  Thomas  and  William  G. 
Murphy,  and   that  the  grantor  mentioned  in  said  deed  of  conveyance 
had  then  and  tliere  a  good,  clear  and   perfect  title  to  said   lots,   which 
said  false  pretenses  were  then  and  there  made  by  the  said  Edward  F. 
Thomas  and  William  G.  Murphy,  with  the  design  and  for  the  purpose  of 
indueing  the  said  Kate  Carherry,  then  and  there,  to  exchange  and  deliver 
the  said  jiersonal  goods,  chattels  and  property  to  the  said  Edward  F.  Thomas 
andAVillianiC.  Mnrphj  ,  lor  the  said  two  lots  of  real  estate,  as  aforesaid;  and 
thesaiil  Kate  Carherry,  relying  upon  and  bdieving  the  said  false  pretenses 
to  be  true,  and  Iteing  deceived  thereby,  wiia  then  and  there  induced  by 
reason  thereof,  on  receiving  from  the  said  Edward  F.  Thomas  and  William 
G.  Murphy  a  deed  of  conveyance,  purporting  to  convey  to  her,  the  said 
Kate  Carherry,  the  title  to  saiil  lots,  and  which  the  said  Edward  F.  Tiionms 
and  William  (i.  Murphy  Iheu  and  there  represented  did  convey  then  and 
there  a  good,  clear  and  jierfect  title  to  said  lots,  to  exchange  and  deliver  the 
said  personal  goods,  chattels  and  property  to  the  said  Edward  F.  Thomas  and 
AVillianid.  Murjihy  therefor:  by  which  saiil  false  pretenses  the  said  Edward 
F.  Tlmnias  and  William  (!.  Mnriihy  then  and  there,  with  intent  to  cheat  and 
(iefrnud  the  said  Kate  (Jarlierry,  feloniously,  unlawfully  and  designedly  did 
then  anil  there  obtain  thi^  said  pt-rsonal  goods,  chattels  and  projierty  from 
the  said  Kate  Carherry;  whereas,  in  truth  and  in  fact,  the  said  two  h^tsof 
real  estate  were  not  worth  in  value  the  sum  of  $050,  aa  the  said  Edward  F. 
Tlioinas  anil  Vv'illinin  (r.  Murjihy  did  then  and  tliere  so  falsely  pretend  to 
the  said  Kati'  Carlierry,  and  the  said  Edward  F.  Thomas  and  William  G. 
Murphy,  at  the  time  they  so  falsely  pretended  as  aforesaid,  well  knew  the 
same  to  he  false;  and   whereas,  in  truth  and   in  fact,  the  said  Edward  F. 
Thomas  was  not  then  and  there  the  absolute  owner,  to  wit,  then  and  there 
the  owner  in  fee-simple,  of  said  lots,  as  the  said  Edward  F.  Thomas  and 
William  (!.  Murphy  did  then  and  there  so  falsely  pretend  to  the  said  Kate 
CarlM-rry,  and  the  said  Edward  F.  Thomas  and  Wiiiiam  G.  Murphy,  at  the 
time  they  so  falsely  pretended  as  aforesaid,  well  knew  the  same  to  be  false; 
iind  whereas,  in  truth  and  in  fact,  the  title  to  said  lots  was  not  then  and 
there  a  good  and  perfect  title,  as  they,  the  said  Edward  F.  Thomas  and 


t*  -■-  t 


136 


AMERICAN  CRIMINAL  REPORTS. 


William  G.  Murphy,  did  then  and  there  so  falsely  ]iretend  to  the  said  Kate 
Caibtrry,  and  the  said  Edward  F.  Tlioaias  and  William  (J.  Mur[>liy,  at  the 
time  they  so  falsely  pretended  as  aforesaid,  well  knew  the  same  to  be  false; 
and  whereas,  in  truth  and  in  fact,  the  said  lots  were  not  free  and  clear  of 
all  liens  and  incumbrances,  as  the  said  Edward  F.  Thomas  and  William  (;, 
Murplr,  did  then  and  there  so  falsely  pretend  to  the  said  Kate  Carbi'rry,  ami 
the  said  Edward  F.  Thomas  and  William  G.  Murphy,  at  the  tlim^  they  so 
falsely  pretended  as  aforesaid,  well  knew  the  same  to  be  false ;  and  wliereas, 
in  ti-uth  and  in  fact,  a  clear  and  perfect  title  was  not  then  and  tlu-re  iiittiiidwl 
to  be  conveyed  to  her,  the  said  Kate  Carberry,  of  said  lots,  iis  they,  tlie  said 
Edward  F.  Thomas  and  William  G.  Murphy,  did  then  and  tliere  s(}  I'ulsely 
pretend  to  the  said  Kate  Carberry,  and  the  said  Edward  F.  Thomas  aud 
William  G.  Murphy,  at  the  time  they  so  falsely  pretended  as  aforesaid,  well 
knew  the  same  to  be  false;  and  whereas,  in  truth  and  in  fact,  a  pH)dand 
perfect  title  to  said  lots  was  not  then  and  there  conveyed  to  the  said  Kate 
Carberry  by  the  deed  of  conveyance  then  and  there  di'Iivered  to  the  sad 
Kate  Carberry  by  the  said  Edward  F.  Tiiomas  and  William  (}.  Miii'iiliy,  as 
the  said  Edward  F.  Thomas  and  William  G.  Murphy  did  then  and  there  sn 
falsely  pretend  to  the  said  Kate  Carberry,  and  the  saiil  Edward  F.  TlKJiiiiL- 
and  William  G.  Murphy,  at  the  time  they  so  falsely  pretended  as  al'oriaaid, 
well  knew  the  same  to  be  false;  and  whereas,  in  truth  and  in  fact, tiie 
grantor  mentioned  in  said  deed  of  conveyance'  had  not  then  and  tlieiea 
good,  clear  and  perfect  title  to  said  lots,  as  lln^  said  Edward  F.  Thinuas  and 
W^illiam  G.  Murpliy  did  then  and  there  so  falsely  i)retend  to  the  said  Kate 
Carberry,  aud  the  said  Edwaixl  F.  Tliomas  and  William  (J.  Murphy,  at  tlic 
time  they  so  falsely  pretended  as  aforesaid,  well  knew  the  same  to  he  false;  on 
the  contrary,  the  said  two  lots  were  not  then  an<l  there  woitli  in  value  toex- 
ceed  the  sum  and  value  of  .^200,  and  the  said  Edward  F.  Thomas  was  not  tlii'ii 
and  there  the  absolute  owner  of  said  lots,  to  wit,  the  owner  in  t'ce-siiiiiilc,  and 
the  title  to  said  lots  was  not  then  and  there  a  ^ood,  clear  and  perfect  title. 
and  the  said  lots  were  then  and  there  ineuinhered  by  tax  titles,  Jiiil;;ineiil 
liens  and  other  liens  and  incumbrances,  ami  the  deed  purpnrtiii;;  ti>  cduvcv 
the  title  to  said  lots  did  not  then  and  tliere  eoiivey  to  the  said  Kate  ( 'arlieiiy 
a  good  and  jjcrfect  title,  and  the  grantor  mentioned  in  said  <leed  iiad  imt 
then  and  there  a  good,  clear  and  i)erfect  title-  to  said  lots,  to  then  and  llieiv 
convey  to  her,  the  said  Kate  Carberry ;  and  tiie  saitl  Edward  F.  Thomas  and 
William  G.  Murphy,  at  the  tiuu'  they  so  falsely  pri'tended  as  afore.-aiil,  will 
knew  the  said  pretenses  to  bo  false,  contrary  to  the  statute,  and  a;^aiu.-t  tin' 
peace  and  dignity  of  the  same  people  of  the  state  of  Illinois. 

LuTiiKK  JiAiM-iN  Mills, 
State's  Attorney, 

THE  LAW  OF  THE  CASE. 

Ist.  Greenleaf  says,  sec.  93,  vol.  3:  "T\uM;viflcncc  in  proof  of  aeenspiracy 
will  generally,  from  the  nature  of  the  case,  be  circninstinifidl,  Tlmugli  tii<' 
common  design  is  the  essence  of  the  charge,  it  is  not  necessary  to  )iriivt'tlial 
the  defendants  came  together  and  actiially  agn.'ed  in  terms  to  have  that  ili- 
sign,  and  to  pursue  it  by  common  means.  If  it  Ije  proved  that  the  defeml- 
ants  pursued  by  their  acts  the  same  object,  often  by  the  same  nuans,  oni' 
performing  one  part  and  another  another  part  of  the  same,  so  as  to  com- 


THOMAS  V.  THE  PEOPLE. 


1  "* 


iilete  it,  with  a  vie-w  to  the  attaiiiiiKuit  of  that  same  object,  the  jury  will  be 
iustifleil  in  the  eoncUisio  \  that  they  were  en;j;ageil  in  a  conspiracy  to  effei  t 

tiiat  object." 

Wharton  wiy.-; :  "The  actual  fact  of  conwpirin}?  may  be  inferreil.  as  lias 
been  said,  from  circumstances,  and  the  concurrinj^  conduct  of  tlie  defend- 
ants need  not  be  directly  provetl.  Any  joint  action,  on  a  material  point,  or 
collocation  of  independi'nt  but  co-operative  acts,  by  persons  closely  asso- 
ciated with  each  other,  is  held  to  Ik)  sufficient  to  enable  the  jtiry  to  infer 
concuiTence  of  sentiment ;  and  one  competent  witness  will  suffice  to  prove 
tlio  co-o))eratit)n  oi  any  individual  conspirator.  If,  therefore,  it  appear  that 
two  persons,  by  their  acts,  are  pursuiii<;  the  same  object,  often  by  the  same 
means,  one  iicrforminj;  part  of  the  act  and  the  other  coinpletinf?  it.  for  the 
.ittainmont  of  the  oliject,  the  jury  may  draw  the  conclusion  that  there  is  a 
lonspiiiuy."    \Vliarton"s  Criminal  Law,  sec.  1398,  8th  ed. 

Anioiij;  the  cases  cited  in  the  notes  to  this  siiction  is  the  case  of  Common- 
icmUh  V.  MvCkaii,  '2  Pars..  ;W;{,  in  which  case  it  is  said: 

'"In  prosecution  for  criminal  conspiracies  the  proof  of  the  combination 
clmrgeil  must  always  be  extracted  from  the  circumstances  connected  with 
the  transaction  wiiit'h  forms  the  subject  of  the  accusation.  In  tlie  history 
of  criiiiiiial  administration,  the  case  is  rarely  found  in  which  direct  and 
positive  evidi'nce  t)f  criminal  cumbination  exists.  To  hold  that  nothing 
short  of  sudi  pro<if  is  sulUcient  to  establish  a  conspiracj'  would  bo  to  give 
ininmiiity  to  one  of  the  most  dangerous  crimes  which  infest  society.  Hence, 
in  order  to  iliscover  conspirators,  we  !in*  forced  to  follow  them  through  all 
the  devious  windings  in  which  the  natural  anxiety  of  avoiding  detedicm 
teaches  men  so  circumstanced  to  envelop  themselves,  and  to  trace  their 
movoiuenls  from  tlu<  slight  but  often  unerring  marks  of  progress  which  the 
most  adrtjit  cuMuing  cannot  so  effectively  obliterate  as  toTemler  them  unap- 
preciabie  to  the  eye  t)f  the  sagacious  investigator.  It  is  from  the  circum- 
stances attending;-  a  criminal  or  a  series  of  criminal  acts  tliat  we  are  able  to 
buconic  , sal islied  that  they  have  b(>en  the  result  not  merely  of  individu.al, 
but  tile  products  of  concerted  and  associated  action,  which,  if  considered 
separately,  nii;^'ht  seem  to  proceed  ex(diisively  from  the  immediate  agent  to 
tiu'in,  but  wliieli  may  be  so  linked  together  by  circumstances  in  themselves 
so  sligiit  as  to  leave  tlie  mind  fully  satislied  tliat  tiiese  a])parentiy  isolated 
acts  are  truly  parts  of  a  common  whole;  that  tliey  have  s])ruitg  from  a 
conuiion  i)bje(t,  and  have  in  view  a  common  end.  The  adeipiacy  of  the 
pvidenix'  in  prosecutions  for  a  criminal  consi)iracy  to  i)rovo  the  existence  of 
sucii  a  ciins]iiracy,  like  other  (piestions  of  the  weight  of  evidence',  is  a  ([Ues- 
tion  for  the  jury." 

An  instruction  to  the  jury  coi>ied  rprfur/iiu  from  the  abovo  decision  was 
sustained  by  the  supreme  court  of  Iowa  in  Stnic  r.  Stcrliiitj,  'M  Iowa,  413. 

While  it  might  not  b(>  considered  erroneous,  it  seems  to  me  that  it  is  cer- 
tainly going  to  the  extreme,  to  wit,  the  dividing  line  between  an  instruction 
and  a  stump  speech  from  the  bench. 


I 


l( 


A- 


THE  INDICTMENT. 
If  either  of  the  pretenses  set  out  in  an  indictment,  when  properly  pleaded, 
be  proved  to  have  been  falsidy  made,  etc.,  it  is  suflicieiit.  as  the  others  will 
be  treated  jis  mere  surplusage.    It  may  be  considered  ivs  a  settled  principle 


im 


AMERICAN  CRIMINAL  REPORTS. 


of  law,  that  courts  will  not  sustain  a  motion  to  quash  an  in(li<  tmcnt  it 
cither  count  is  sufTicient  to  sustiiin  a  conviction  of  tho  offense  (■liar;j;eil  therein; 
hut  if  application  is  made  in  apt  time,  the  court  will  compel  tiie  iinwecutor 
to  elect,  citlier  lieforo  or  during  the  trial,  upon  which  count  he  will  claim 
a  conviction.  We  take  it  that  these  principles  are  elementary,  and  tliattlie 
citation  of  authority  hecomos  unnecessary. 

The  law  governinj;  such  principles  is  aptly  stated  hy  the  court  in  f?oo((- 
hue  V.  The  Pcu2)h;  94  111.,  on  page  51,  as  follows:  "  If  two  or  more  olTcnses 
form  part  of  one  transaction,  and  are  such  in  nature  that  a  <lefci)(liitit  mav 
he  guilty  of  both,  the  prosecution  will  not,  as  a  general  rule,  ho  put  t<5  an 
election,  but  may  ])roceed  upon  one  indictment  for  tho  several  offenses, 
though  they  be  felonious.  Tho  right  of  demanding  an  election,  and  the 
limitation  of  the  prosecution  to  one  offense,  is  confmerl  to  charges  which 
are  actually  distini't  from  each  other,  and  do  not  form  jifirts  of  <ini'  and  the 
same  transaction.  In  misdemeanors,  the  in-osecution  may,  in  the  discrotion 
of  the  court  trying  the  case,  be  reipiired  to  confine  tho  evidence  to  one  of- 
fense, or,  where  evidence  is  given  of  two  or  more  offenses,  may  be  rcMjuireil 
to  elect  one  charge  to  be  submitted  to  the  jury;  hut  in  cases  of  felony  it  is 
the  right  of  tlie  accused,  if  he  demand  it,  that  he  he  not  i)ut  upon  trial  at 
the  same  time  for  more  than  one  offense,  except  in  cases  where  tlie  several 
offenses  are  respifotively  jiarts  of  tho  same  traTisaction." 

Bisliop,  in  his  work  on  Criminal  Procedure,  lays  down  tho  doctrine  that 
'■  in  states  when;  there  can  be  a  conviction  for  nusdemeanor  on  any  indict- 
ment for  felony,  counts  for  felony  and  misdemeanor  may,  under  some  cir- 
cumstances, be  properly  joined."  I  Bish.  Cr.  Pro.,  sec.  l!)i).  "  It  is  allowed 
alwaj's,"  said  Dew(?y,  J.,  "  where  .several  counts  are  introduced  for  tlie  pur- 
pose of  meeting  the  evidence  as  it  may  transpire  on  tho  tri.al,  all  the  counts 
being  substantially  for  the  same  offense."  Com.  t*.  MelAVKjhVni,  12  Cush,, 
612:  The  State  r.  Suttou,  4  Gill,  494;  Bnrke  v.  The  Stale,  2  liar.  &  J.,  426; 
The  State  v.  Poseij,  7  Rich.,  4S4,  and  other  cases. 

As  a  party  indicted  for  felony  may  be  convicted  of  a  niisdemeaiior  in  Illi- 
nois, if  the  offenses  are  cognate  and  relate  to  the  same  transaction,  tiio  rale 
stated  by  Bishop  and  sustained  by  the  authorities  would  apply  if  it  were 
even  licld  that  conspiracy  comes  under  the  detinition  of  felony,  wliich  it 
docs  not. 

It  is  a  general— almost  universal  — iirinciplo  of  law  that  a  consi)iracy, 
where  its  object  is  the  commi.ssion  of  a  felony,  will  not  be  sustained,  when  tiie 
fehmy  is  executed  for  the  reason  that  the  conspiracy,  being  a  misdemeanor, 
is  merged  in  tiie  offcuise  committed.  "  Coii8i)iracy  is  iiiisdenieanor,  even  in 
those  ciises  where  its  object  is  the  commission  of  a  fi'lony."  2  Pish.  Crira, 
L.,  4th  ed.,  sec.  231.  And  the  extent  of  the  imprisonment  for  misdemeanor 
does  not  make  it  a  felony,  prjvided  tho  imprisonment  is  for  a  stateil  num- 
ber of  j-ears,  not  for  life.  The  Sl<ite  v.  Ihwforth,  JJ  Conn.,  112;  The  State 
V.  Miirphij,  0  Ala.,  70");  The  State  v.  Xuijes,  25  Vt.,  415;  lie;;,  r.  lintiim,  U 
Q.  B.,  929;  People  v.  Mather,  4  Weml.,  229;  Reapultliefc  v.  De  LoiKjelaimps, 
1  Dall.,  111.  Wharton,  under  the  sub-title  "  Conspir.-icies  to  commit  an 
indictable  offense,"  vol.  2,  sec.  1,  345,  8tli  ed.,  in  di.scussing  the  proju'loty 
of  joining  counts  for  conspiracy  with  counts  for  constituent  misdemeanors, 
says : 

"  The  comparative  simplicity  of  such  an  indictment  has  made  it  a  favorite 


practice  in  this 
(icsoription  of  v 
a  conspiracy, 
emit  will  com] 
relies;  and  wlie 
tlu>  defendant 
Whm'  he  is  slu 
riiMiiihiiii  if  he 
the  partiiMiIar  r 
known  to  the  g 
joining  counts  1 
strongly  ilhistr 
same  liherality 
jects  per  se  ill 
spiracy  counts 
sanctioned," 

In  the  abov( 
the  defendants, 
spiracy,  as  chai 
F.  Thomas  at  t 
pay  a  line  of  ?: 

It  was  ( laiini 
jjose  a  fine  on  < 
tho  punisliinei: 
sanction  to  the 
nicety,  it  will  I 
relative  to  the 
flict  it. 

Section  40),  C 
and  iigi'i'C  toge 
wickedly  to  in 
or  to  obtain  nn 
he  deemed  gui 
sou  convictfil 
IM'uitentiary  ih 
section  44.")  pm 
may  he  intlicli 
tinement,  or  tl 
nected  in  a  cri 
of  superior  mi 
weaker  mind, 
.so  in  almost  e\ 
oniueut  —  is  k 
tlie  legislature 
ment,  or  the  i 
reason  why  a 
ciicuiiibtances 


THOMAS  V.  THE  PEOPLE. 


139 


practice  in  this  country,  in  preparing  a  prosecution  for  misdemeanor,  tlio 
ilescription  of  whitli  is  attended  with  any  ditticulties,  to  insert  a  count  for 
a  conspiracy.  Wiicn  the  evi<lenco  for  the  prosecution  is  finished,  the 
{'ouit  will  compel  it,  in  a  proper  case,  to  state  on  what  chiss  of  counts  it 
rcliw;  imd  wlicn  this  discretion  is  judicially  exercised,  it  is  hard  to  see  how 
till'  (k'feiiiliint  can  be  embarrassed  in  the  nianaj^einent  of  his  defense. 
WluTi'  he  is  shown  to  have  acted  conjointly  with  others,  he  (cannot  justly 
rc)!npl;iin  if  he  is  char<?ed  with  having  conspired  with  them  in  ja-oducing 
tlu'  particuhir  results,  even  though  the  names  of  his  co-conspirators  are  not 
known  to  the  grand  jury,  and  the  indictment  so  states.  The  advantage  of 
joining  counts  for  (!onspiracy  with  counts  for  constituent  misdemeanor  is 
strongly  illustrated  by  a  lea<ling  ca.se  in  Pennsylvania."  .  .  .  "  Tlie 
same  liberality  in  the  construction  of  counts  for  conspiracit^s  to  efTect  ob- 
jects IKt'  St'  illegal  has  prevaih'd  in  England;  the  jtractice  of  joining  con- 
sjMracy  counts  with  counts  for  the  constituent  misdemeanors  is  there 
sanctioned." 

In  the  above  case,  the  verdict  of  the  jury  reads:  "We,  tlu?  jury,  find 
tlie defendants,  Edward  F.  Thomas  and  William  G.  Muiphy,  unilty  of  con- 
spiracy, as  charged  in  the  indictment,  and  fix  the  punishment  of  Edward 
F.  Thomas  at  three  years  in  the  penitentiary,  and  of  William  O.  JIurphy  to 
pay  a  line  of  .>?:!.")0." 

It  was  claimed  i>y  counsel  for  the  defendant  that  the  jury  could  not  im- 
pose a  fine  on  one  defendant,  antl  fix  a  term  of  years  in  the  penitentiary  as 
the  punishment  of  the  other,  but  the  court  seems  to  have  given  its  full 
sanction  to  the  right  of  the  jurj'  so  to  do.  As  this  is  a  <|Uestioii  of  nmch 
nicety,  it  will  be  jtroper  ti)  (piote  the  sections  of  the  Illinois  Criminal  Code 
relative  to  the  punishment  and  bearing  upon  the  right  of  the  jury  to  in- 
flict it. 

Section 40,  Criminal  Code,  provides,  "  if  any  twoor  more  persons  ccmspiro 
and  agiee  together,  with  the  fraudulent  or  malicious  intent  wrongfully  and 
wickedly  to  injure  the  person,  character,  business  or  property  of  another, 
or  to  obtain  money  or  other  property  by  false  pretenses,  .  .  .  they  shall 
1k'  deemed  guilty  of  a  conspiracy,  and  every  such  offender,  and  every  per- 
son convicted  of  conspiracy  at  common  law,  shall  be  imjirisoned  in  the 
IM'nitentiary  not  exceeding  three  years,  or  fined  not  exceeding  $1,000."  And 
swtioii  44.")  provides,  "  when  either  fine  or  imiiriscmment  in  the  penitentiary 
maybe  inflicted,  the  jury  shall  detennine  which,  and  the  time  of  the  con- 
tiiioment,  or  tli(!  amount  of  the  fine."  Where  two  parties  are  jointly  con- 
nected in  a  criminal  transaction,  it  is  proper  for  the  jury  to  punish  the  man 
of  superior  mind  —  the  greater  criminal  —  more  severely  than  the  man  of 
weaker  mind,  or  the  one  who  is  less  culpable  in  tlu'  transaction.  This  is 
.so  in  almost  every  instance  where  ilie  punishment  —  the  duration  of  impris- 
oiiineiit  —  is  left  to  be  determined  by  the  court  instead  of  the  jury.  When 
the  legislature  luis  seen  fit  to  leave  the  punishment,  the  dunition  of  impris- 
niont,  iir  the  amount  of  fine,  as  the  case  may  be,  to  the  jury,  there  is  no 
reason  why  a  wise  discretion  should  not  be  exercised  by  thcni  under  such 
circumstances. 


/   ■■ 


140 


AMERICAN  CRIMINAL  REPORTS. 


The  Queen  v.  Cox  and  RAir/rox. 

(14  Law  Reports,  Q.  B.  Div.,  153.) 

COXSPIKACY:  Fvivlkyed  commnnicatioits  —  Solicitor  and  client. 

1.  All  communications  between  a  solicitor  and  liis  client  are  not  privilcgwl 

from  disclosure,  but  onlj'  those  passing  between  tliem  in  professional 
confidence  and  in  the  li'gitimate  course  of  professional  einijlovnientof 
the  solicicor.  Communications  made  to  a  solicitor  by  his  client  before 
the  commission  of  a  crime,  for  the  purpose  of  being  guided  or  heliuHl 
in  the  commission  of  it,  are  not  privileged  from  disclosure. 

2.  C.  and  R.  were  partners  under  a  deed  of  i)artnershi]).     M.  brf)nj,ditan 

action  against  R.  &  Co.,  and  obtained  judgment  therein,  and  issueil 
execution  against  the  goods  of  R.  The  goods  seized  in  execution  were 
then  clahned  by  C.  as  his  absolute  property,  under  a  bill  of  siile  exenited 
in  his  favor  by  R.  at  a  date  subserpient  to  the  above-mentioni'il  juiji,'- 
mcnt.  An  interpleader  issue  was  ordered  to  determine  tlie  vali'lityof 
the  bill  of  Side,  and  upon  the  trial  of  this  issue  the  partiiersliip  deH 
was  produced  on  C.'s  behalf,  bearing  an  indorsement  iiurportiiig  to  lie 
a  memorandum  of  dissolution  of  the  said  partnersbij),  pridr  to  llio 
connnencenient  of  the  action  by  51.  Subsecpiently  ('.  anil  It.  were 
tried  and  convicted  upon  u  cbargo  of  conspiring  to  defraud  M,,  and 
upon  that  trial  the  case  for  tliejirosecution  was,  that  the  bill  of  salewiis 
fraudulent,  that  the  partnership  between  R.  and  C.  was  in  trutli  sub- 
sisting when  it  was  given,  and  that  the  memorandum  of  dissohitinn 
indorsed  on  the  deed  was  put  then^  after  51.  had  obtained  judgment, 
and  fraudulently  anteilated,  the  whole  transaction  being,  it  was 
alleged,  a  fraud  intended  to  ciieat  M.  of  the  fruits  of  his  execution, 
Upon  the  trial  a  solicitor  was  called  on  behalf  of  the  prosecution  to 
prove  that,  after  51.  h.ad  obtained  the  judgment,  C.  and  R.  together  con- 
sulted him  as  to  how  they  could  defeat  M.'s  judgment,  and  as  to 
whether  a  bill  of  sale  cf>uld  legally  be  executed  by  R.  in  favor  of  C.  so 
as  to  defeat  such  judgment,  and  that  no  suggestion  was  then  made  of 
any  dissolution  of  partnership  having  taken  place.  The  recejjtion  of 
this  evidence  being  objected  to,  on  the  ground  that  the  comiiuuiica- 
tion  was  one  l)etween  solicitor  and  client,  and  privileged,  the  evidenee 
was  received,  but  the  question  of  whether  it  was  properly  received 
was  reserved  for  this  ct)urt.  Held,  by  the  court,  that  the  evidence  wiis 
properly  received. 

The  following  case  was  stated  by  Sir  Thomas  Chambers, 
recorder  of  London : 

"At  the  February  sessions  of  the  central  criminal  court, 
Richard  Cobden  Cox  and  llichard  Johnson  Kailton  were  tried 
before  me  on  an  indictment  then  preferred  against  them.  The 
indictment  was  ol)jected  to  on  behalf  of  the  defendants,  on 
the  following  grounds,  viz. :  Count  1,  which  is  framed  u[)on 


THE  QUEEN  v.  COX  AND  RAILTON. 


Ul 


sections  1  and  2  of  13  Eliz.,  ch.  5,  on  the  ground  that  the  acts 
allced  therein  do  not  constitute  'dxi  offense  under  that  statute, 
and  that  therefore,  as  no  conspiracy  is  alleged  in  tluit  count,  no 
offense  is  charged.  It  was  further  objected  that  tlio  count  was 
bad  in  charging  the  defendants  with  unhiwfully  and  fraudu- 
lently obstructing  and  perverting  the  j)rovisions  of  the  act,  and 
not  with  (lisoheying  them.  Count  2,  which  is  framed  under 
section  15  of  the  said  statute,  was  also  objected  to  on  the 
"•round  that  the  acts  allog<Hl  therein  do  not  constitute  an 
offense  ftir  which  a  single  person  can  be  indicted,  and  that,  as 
no  cons})iracy  is  alleged  therein,  no  oll'ense  was  charged  in  that 
count.  Count  >i,  which  charges  a  consj)iracy  to  commit  the 
acts  alleged  in  the  lirst  and  second  counts,  was  objected  to  on 
the  ground  that  it  <loes  not  contain  any  allegation  of  an  intent 
to  defraud.  Counts  4,  5  iind  (>  were  objected  to  on  the  ground 
that  as  they  charge  a  cc^nspiracy  to  commit  an  act  which  is 
not  in  itself  illegal,  it  is  necessary  to  set  out  in  each  of  these 
counts  ovei't  acts  which  show  the  means  by  which  the  con- 
spiracy was  elfected. 

"The  facts  of  the  case,  so  far  as  they  are  pertinent  to  this 
case,  were  as  follows:  In  l-'ebruary,  iss-j,  an  action  was  brought 
by  Henry  Munster  against  II.  J.  Uailton  <Sz  Co.,  the  publishers 
of  a  ne\vspai)or  called  the  Ihuijhtonktn.  for  libel,  and  an  appear- 
ance was  entered  to  that  action  by  the  defendant  Kichard 
Johnson  Kailton  alone.  That  action  resulted,  on  the  24th  of 
June,  1SS2,  in  a  verdict  and  judgment  for  the  plaintiff  by  con- 
sent for  40.9.  and  costs  as  between  solicitor  and  client.  The 
costs  were  on  the  18th  of  August,  1SS2,  ta.xcd  at  .£4S9  4.s\  Ik/., 
and  on  the  2(tth  of  August  execution  was  issued  against  the 
defendant,  liailton,  for  the  amount  of  the  judgment.  The 
sheriff,  upon  going  into  possession  of  the  household  goods  and 
stock-in-trade  at  the  ])rcmises  where  the  newspaper  was  carried 
on,  Avas  met  by  a  duly  executed  and  attested  bill  of  sale  of  such 
goods  and  stock,  and  of  the  copyright  of  the  JirI<jhtoni.a>i,  from 
Railton  to  the  other  defendant,  Richard  Cobden  Cox,  dated 
the  12th  of  August,  1SS2,  and  registered  the  19th  of  August, 
1882,  and  the  sheriff  thereupon  withdrew  from  possession.  An 
interpleader  issue  was  afterwards  directed  to  be  tried  with  ref- 
erence to  this  bill  of  sale,  and  upon  the  trial  of  that  issue  on 
the  15th  of  January,  1S83,  a  deed  between  the  defendants  Cox 


142 


AMERICAN  CRIMINAL  REPORTS. 


and  Eailton,  dated  the  9tli  of  A]>ril,  1S81,  was  producoj,  by 
Avliich  they  a;^n'oed  to  become  ])artners  in  the  business  of  news- 
paper pro})i'ietors  for  the  term  of  twenty-one  years,  determina- 
ble in  certain  events  at  the  end  of  three  years  on  givinj^six 
montlis'  notice.  That  deed  had  indorsed  on  it  a  memoraiKhim 
of  disst>hition  signed  by  the  two  defendnnts,  purporting  to  have 
been  signed  on  the  .3d  of  January,  1S82.  The  case  for  the 
prosecution  was  that  the  bill  of  sale  was  a  fraudulent  bill  of 
sale  of  the  i)artnership  assets,  entered  into  between  Kailton  and 
Cox  whilst  they  Avere  partners,  for  the  purpose  of  depriving 
Henry  i\[unster  of  the  fruits  of  his  judgment,  and  as  evidence 
of  fraud  they  pi-oposcd  to  prove  that  the  memorandum  of  dis- 
solution of  the  partnershij),  although  dated  on  the  13d  of  Jan- 
nary,  1882,  was  not,  in  fact,  executed  until  after  Henry  JMunstor 
had  obtained  the  judguient  against  Railton,  and  for  this  pur- 
pose they  called  ^[r.  (ioodman,  a  solicitor  who  had  acted  for 
both  Cox  and  Railton  in  the  ])reparation  of  the  deed  of  part- 
nership, to  prove  a  conversation  he  had  with  the  two  defend- 
ants on  the  2st]i  of  June,  1882,  at  his  oHice,  when  they  called 
to  consult  him  [)rofessionally  four  days  after  the  trial  of  tlio 
action  against  llailton.  This  evidence  was  objected  to  on  be- 
half of  the  defendants  on  the  ground  that  it  was  a  privileged 
communication,  and  the  case  of  Cromach  v.  Ilcathcotc,  2  IJ.  k 
B.,  4,  was  cited. 

"  Counsel  for  the  prosecution  contended  that  the  conversation 
took  place  for  the  purpose  of  fraud,  and  referred  to  a  printed 
copy  of  the  shorthand  writer's  notes  of  the  case  of  /^v/.  v. 
Ctutro.  I  admitted  the  evidence,  which  was  to  the  following 
effect : 

'"On  the  28th  of  June,  or  thereabouts,  Railton  and  Cox 
came  to  me.  l^iilton  said,  "  I  suppose  you  have  heard  the  re- 
sult of  the  Munster  case."  I  said,  "Yes."  He  said,  "Can 
anything  be  done  to  prevent  the  ]iroperty  being  seized  under 
an  execution  ? "  I  said,  "  Only  a  sale  to  a  honajide  purchaser." 
He  said,  "  Could  the  property  be  sold  and  I  remain  in  posses- 
sion as  a  manager?"  I  said,  "No,  you  mnst  go  out  of  pos- 
session." He  said,  «  That  won't  do.  Can  I  give  a  bill  of  sale 
to  Mr.  Cox?"  I  said,  "No,  you  cannot,  because  of  the  part- 
nership." Railton  said,  "  Does  any  one  know  of  the  partner- 
ship except  you  and  ourselves? "    \  said,  "  No,  not  that  I  am 


aware  of,  onl^\ 
ii  bill  of  sale 
asked  my  fee 
said  about  a  ( 
with  me  as  a  s 
arranged  that 
citlier  way  w; 
found  guilty  < 
the  evuleiu'c  i 
the  jury  to  :i 
admitted  the 
decided  by  tli 
"Tlie(iuest 
of  ^Ir.  (iodd 
indictment  cl 
any  of  the  ci 
in  the  noguti' 
answort'd  in  t 
sliould  be  cut 
sufficiently  el 

1S81,  Apri 
J.,  Hawkins, 

E.  Chvhe, 
ants.  :Mr.  (i 
and  he  was  c 
aniincd  as  to 
when  they  a\ 
out  any  ])r()i 
since  commi 
not  absoluti! 
prima  fncii 
been  admitt 
iirst  been  hii 
ilege.  Hy  < 
of  Evidence 
lislied  that  t 
made  in  the 
&  Arnold 


THE  QUEEN  v.  COX  AND  RAILTON. 


143 


aware  of,  only  my  clerks.*'  Cox  said,  "  Then  you  don't  think 
ii  bill  of  salo  will  do?"  I  said,  ''Certainly  not."  They  then 
iislced  my  foe  and  paid  it,  and  left  the  oftice.  Nothing  was 
saiil  about  a  dissolution  at  that  interview.  The  interview  was 
with  me  as  a  solicitor,  and  I  was  paid  my  fee.  It  was  expressly 
iirran"'ed  that  the  partnershij)  should  be  kept  secret.  Nothing 
cither  way  was  said  about  a  dissolution.'  Thetlefendauts  wei'c 
found  fuilty  on  all  the  counts  of  the  indictment.  I  considered 
the  evulent'C  of  Mr.  (ioodman  had  a  material  elFect  in  inducing 
the  jury  to  arrive  at  that  verdict.  I  reserved  judgment  and 
ailmittod  the  defendants  to  bail  until  this  case  shall  have  been 
decided  by  the  court  for  crown  cases  reserved. 

•'  The  questions  for  the  court  are :  (1)  AV'hether  the  evidence 
of  Mr.  (ioodman  was  i)rojierly  admitted.  (2)  Whether  the 
intlictmeut  charged  an  ofTense  against  the  defendants  in  all  or 
any  of  the  counts.  If  either  of  these  questions  is  answered 
in  the  negative  the  convicticm  is  to  bo  quashed;  if  both  are 
answeicd  in  the  aillrmative  it  is  to  be  affirmed,  and  the  verdict 
sliouhl  he  entered  on  s<ich  of  the  counts  of  the  indictment  as 
sutficiently  charge  an  offense." 

1S8-1,  April  T).  The  judges  present  wore  Lord  Coleridge,  C. 
J.,  Hawkins,  Stei»hen,  AVatkin  Williams  arul  Mathew,  JJ. 


E.  Clarl'c,  Q.  C.  {Gore  and  Gill  with  him),  for  the  defend- 
ants. Air.  (ioodman  was  formerly  the  <lefendants'  solicitor, 
and  ho  was  called  upon  this  trial  by  the  prosecution  and  ex- 
amined as  to  what  had  passed  between  himself  and  his  clients 
when  they  went  to  consult  him  professionally,  and  that  with- 
out any  pi-oof  of  any  fraud  having  been  then  intended,  or 
since  committed  b}'  the  defendants.  Such  communications,  if 
not  absolutely  privileged  from  disclosure,  must  at  least  be 
j)/v'H((«/r;(vV  privileged,  so  that  the  evidence  should  not  have 
been  admitted  without  some  reasonable  foundation  having 
first  been  laid  by  evidence  to  destroy  the  presumption  of  priv- 
ilege, r.y  Grccmmgh  v.  Gad'dl,  I  My.  &  K.,  98;  Ro-scoe's  Dig. 
of  Evidouco  in  Crim.  Cases,  Idth  ed.,  pp.  154-157,  it  was  estab- 
lished that  the  privilege  was  not  confined  to  communications 
made  in  the  course  of  litigation.  In  Hex  v.  Smith,  1  Phillips 
&  Arnold  on  Evidence,  p.  118,  Ilolro^^d,  J.,  refused  to  order 


m 


141 


AMERICAN  CRIMINAL  REPORTS. 


ail  attorney  to  produce  a  forged  note  wliicli  liad  hoen  intrusted 
to  him  prol'ossionally  by  his  client,  tlie  uUegcid  forger,  for  the 
purposes  of  the  trial  of  his  client  for  the  forgery.  J  lis  view 
was  that  a  solicitor  ought  not  to  produce  it  against  his  client. 
It  is  true  that  in  /Ay.  v.  Aof/'i/,  8  C.  *fe  P., .")()»],  this  case  is  rather 
questioned,  but  it  is  afterwards,  in  AVy/.  v.  T>j}n<>j^  18  L.  J.  (Ji, 
C),  3G;  1  Den.  C.  C.,  oil),  (pioted  as  an  authority. 

(Lord  CoMouinni;,  C.  J.  This  case  resembles  Ci'oinad'  w 
ILathcote^  2  B.  &  13.,  4;  it  may  bo  we  shall  have  to  consider 
whether  that  case  is  hiw.) 

That  case  is  approved  of,  and  followed,  in  subsequent  cases. 

(AVatkin  AVii.i.iAMs,  J.  If  a  robber  constdtsa  skilled  lawvcr 
how  to  rob  with  imi)unity,  can  such  a  consultation  bo  privi- 
leged 0 

That  would  not  be  a  consulting  a  solicitor  jirofessionallv; 
but  before  the  solicitor  could  be  examined,  evidence  should  bo 
required  to  show  that  it  was  not  a  professional  consultation- 
evidence  (0)  Clint.  The  foundation  of  the  rule  as  to  ])rivilej:e 
is  the  necessity  for  allowing  communications  with  ])rolVssioniil 
advisers  to  be  perfectly  free  and  truthful,  unfettered  by  am 
fear  of  consequences. 

(Lord  Coi-hjidok,  C.  J.  AVe  fully  recognize  the  importance 
of  this  case,  and  feel  the  necessity  of  protecting  all  legitimate 
communications  between  clients  and  their  legal  advisers,  and 
as  the  cases  are  not  altogether  consistent,  we  think  this  case 
should  be  argued  before  a  full  court,  so  tluit  an  authoritative  rule 
may  be  laid  down.) 

ISSJ:,  June  21,27.  The  judges  present  were  Grove,  J.,  Pol- 
lock and  Iluddleston,  IJH.,  Lopes,  Ifawkins,  kStei)hen,  Watkin 
AVilliams,  Mathew,  Day  and  Suiith,  ^>L 

E.  Clarl'e,  Q.  C,  for  the  defendants,  continued  his  argument, 
The  rule  is  clearly  laid  down  that  what  passes  l)etween  solic- 
itor and  client  in  professional  confidence  is  privileged  from 
disclosure.  The  clients  here  consulted  the  solicitor  profession- 
ally, paying  him  a  fee  for  his  advice.  In  Vhil.  on  Evidence, 
p.  105,  the  rule  now  contended  for  is  stated  —"an  attorney  will 
not  be  allowed  against  his  client's  will  to  disclose  matters  of 
professional  confidence,  though  himself  willing  to  do  so;"  and 


reasons,  whicl 
there  j,nvcn. 
fully  bears  on 
sired,  ni  violal 
ney,  was  siniil 
was  called  in  t 
assignment  be 
iifterwanls  di( 
applies  tlie  tes 
holds  that  he 
chievous  if  it 
munication  we 
view. 

(IIlDDI.KSTO: 

raised  here,  dt 
Xo;  it  does 
doubt  that  if  1 
all  that  passe 
ILiijiln,  2  Fox 
of  Duslie,  (J. 
whether  a  cer 
law  of  libel, 
to  say    liiit  ti 
.r    i)r 
.adconlide 
I  lie  or  t'i'lonio 
execute  i  so  a 
say  thai  such 
meditates  an 
come  criminal 
perfectly  just 
considered  as ! 
commit  a  crin: 
be  obliged  to  i 
be  said  to  ai 
adopts  a  cour 
one." 

(Porj,ocK,  1) 
object  is  to  se 
lege?) 

Vol.  V- 


THE  QUEEN  V.  COX  AND  RAILTON. 


145 


reasons,  which  the  dofemlants  adopt  as  their  ar«^umont,  are 
there  ••■i von.  The  case  of  Croiiuid  v.  Jfait/a-ofc,  2  U.  ik  15.,  4, 
fill Iv  hears  out  this  view,  and  the  point  on  which  it  was  de- 
sired, 111  violation  of  professional  conlhlence,  to  call  the  attor- 
nev,  wa3  similar  to  the  point  with  re<^ard  to  which  (loodiiian 
was  called  in  this  case, —  it  was  to  prove  he  refused  to  draw  an 
assi'^ninent  hecause  it  would  he  a  fraud,  wliich  some  oue  else 
iifterwanls  did  draw  for  his  client.  Dalhis.  ('.  ,J,,  rightly 
iil)|)lies  tiic  test,  was  the  attoi'ney  consulted  professionally,  and 
holds  that  ho  was.  Horrough,  J.,  says  it  wouhl  be  most  mis- 
chievous if  it  were  once  doubted  whethei"  or  no  such  a  com- 
munication were  privileged;  and  iiicluirdson,  .J. ,  takes  a  similar 
view. 

(llrDDi.KSTox,  1>.     Taddy,  Sergeant,  does  not  raise  the  point 
raised  here,  docs  he  0 

Xo;  it  does  not  seem  to  have  been  even  thought  ojien  to 
doubt  that  if  the  solicitor  was  enii)loyed  in  the  regular  course, 
ull  that  passed  wuuld  be  privileged.  The  next  case,  It-e  v. 
I/di/iJn,  '2  Fox  iSi  ISiuith,  o7l>,  contains  an  important  judgment 
of  Dusliu,  C.  J.  The  accused  consulted  an  attoi-ney  as  to 
whether  a  certain  document  could  safely,  having  regard  to  the 
law  of  libel,  be  i)ub!ished  by  him;  the  attorney  declined 
to  say  ■  lii't  tiu  iiocunient  shown  to  him  was,  relying  i^)on  the 
if   ])rivih'ire.     The  chief  justice  says:  "If   any  man 

uulconlide  t(i  professional  jtei'son  that  he  had  a  treason- 
ilileor  frlduious  intention,  and  wisheil  to  know  how  he  might 
execute  t  so  as  to  esca))e  punishment,  it  would  be  too  much  to 
say  thai  such  communication  was  privileged;  but  if  a  man 
meditates  an  act  which,  ex  t'ding  certain  limits,  wuuM  be- 
come criminal,  and  conlined  within  certain  bouiuls  wouhl  be 
perfectly  justillablc,  the  person  asking  the  advice  must  be 
considered  as  seeking  how  he  nuiy  avoid  and  not  how  he  may 
commit  a  crime,  and  it  is  i  >|)ossible  that  an  attorney  should 
be  obli^'cd  to  disclose  such  communication.  .  .  .  It  cannot 
be  said  to  amount  to  the  meditation  of  a  crime  if  a  man 
adopts  a  course  by  which  he  seeks  to  avoid  the  commission  of 
one.*' 

(Pollock,  B,  Is  it  possible  to  contend  that  if  the  client's 
object  is  to  see  how  to  commit  a  crime,  there  can  be  a  privi- 
lege?) 

Vol.  V- 10 


'1^ 
',9'i 


UQ 


AMERICAN  CRIMINAL  REPORTS. 


There  is  no  privilege  if  the  solicitor  is  a  jiarty  to  the  crime, 
a  co-conspirator,  but  it  may  bo  otlicrwiso  if  the  solicitor  is  an 
innocent  ])arty.  In  Stei)]ien's  Digest  it  is  said,  afUn-  statinj: 
the  rule,  tliat  the  rule  does  not  extend  tocoinniunicatinns  made 
in  furtliei-ance  of  any  criminal  purpose.  Stepli.  Diq.  of  tl;. 
Law  of  Evidence,  p.  111-.  If  the  attorney  is  innocent,  he  is 
acting  professionally,  wliilst  if  a  ])arty  to  the  crime  lie  coiiM 
not  bo. 

(Gkovk,  J.  Tlie  privilege  is  tlie  client's,  as  has  often  been 
said,  not  the  solicitor's;  so  it  wouhl  seem  reasonable  to  saytlif 
criminal  motive  or  ]nu'})ose  in  the  client  would  destroy  it.) 

It  is  not  in  this  case  necessary  to  do  moro  tlian  sugi^vst  tliat 
whilst  it  is  clear  tlie  ])rivilege  cannot  exist  wliere  the  solicitor 
is  liolping  in  a  crime,  it  is,  on  tiie  ca.scs,  not  so  clear  where  tlic 
client  only  is  guilty  of  any  ci-iminal  intention;  the  point,  how- 
ever,  is  not  vital  to  the  defense.  Again,  in  Ju.e  v.  ILtydn^'i 
Fox  &  Smith,  379,  I'ushe,  C.  J.,  cites  with  ai)proval  ('ronnirti: 
Ilcaihcote,  -1  B.  &  B.,  1.  and  treats  it  as  it  was,  as  decisive  o; 
the  case  before  him.  (h'f.cnoiKjh  v.  (rash//,  1  ^ly.  c^-  K..  t'\ 
lloscoe's  Dig.  of  Evidence  in  ('rim.  Cases,  10th  ed.,  ])\).  l.VH," 
decided  later,  is  a  case  of  great  authority.  The  rule  is  there lai! 
down  in  the  widest  terms,  and  the  reason  given  for  it  is  ti.e 
absolut*?  necessity  for  allowing  ])rofessi()nal  advice  to  ho  safely 
taken;  and  the  excepti(m  that  the  rule  does  not  apply  wiiei' 
the  solicitor  is  a  party  to  the  fi-aud  or  crime  is  also  laid  down 
in  precise  terms.  Again.  CroiDack  v.  ILathfote,  2  B.  k  B.. 4, 
is  not  doubted;  on  the  contrary  it  appears  to  be  a]i|iroveil. 
Soon  after  was  the  i:;i^e  of  Doe  v.  //arr/'s;  .5  ('.  S:  W,  .V.ti'.  ir 
which  Talfourd,  Sergeant,  talces  the  point  that  no  ])i'ivilogeat 
taches  where  there  is  a  fraud  intended;  but  J'arkt\  J.,  tlion 
says,  "the  protection  ap])lies  in  all  cases  in  which  the  rolatio:', 
of  attoi'p.ey  and  client  subsists;"  and  lie  does  not  allow  the  at- 
torney to  be  asked  if  he  was  consulted  for  a  lawful  or  unlawfn! 
])urpose.  Later,  in  /'<ii/-s,'  r.  J*,'iii'n<',  1  De  (r.  *fe  Sni.,  12,  tin 
wide  view  of  the  ])riviIoge  is  again  taken,  and  the  reason  fori: 
])ut  most  strongly  by  Knight  Itruce.  V.  (J.  Fo/Zdi  i\  ./rlfhj'. 
1  Sim.  iX.  S.),  1,  is  important,  inasmuch  as,  while  api)rovinf;tlii 
rule,  it  jioints  out  that  if  the  solicitor  is  a  party  assisting  in  tin 
fraud  the  i)rivilege  is  gone,  and  that  again  is  ]K)inlo(l  outir 
Charlton  v.  Cootnhes,  32  L.  J.  (Ch.),  284.     In  liejo  v.  Smithy  1 


Phil.  &  Arn. 
case  of  fi'iiiid 
licitor  no  ))ai'1 

(Stki'Iikx,  -J 
note  there  wa 

No;  and  c( 
lo<fO  was  des 
Jiv/v/,  8  (/'.I 
Arnold  on  Kv 
later,  in  A'''.y. 
withdraws  hit 
Iv.,  m,  it  see 
not  intrusted 
(lierofore  that 

IiriJ.  t'.  Fiir/i'lj 

went  on  tin;  i 
solicitor,  but  v 
Ui'(j.  V.  T;/hif'i 
shows  that  \V 
a  for;,''o<l  (Uh'A 
entitled  to  go 
trate  conlil  no 
V.  Il(ii(I:iiis,  2 
held  that  a  s< 
client  fill'  pel' 
jury  was  iMiii' 
in  the  cninse 
said  that,  tlicai 
defendants  we 
entitle  them  U 
from  Mr.  (ioo 
is  siillieient  Ih 
mouth  is  not  t 
was  oi'iiim  fi 
bein^r  (i|.,st  (.'iv 
or  ou-,^lit  to  I 
put  the  inatt( 
boon  called  t( 
examined,  anc 
(AVaikin  W 


THE  QUEEN  v.  COX  AND  RAILTON. 


147 


Phil.  &  Arnold  on  Evidence,  IIS,  tliere  is  an  example  of  a 
case  of  li'iii'd  and  criminal  intention  in  the  client  and  of  a  so- 
licitor no  i)iu'ty  to  it. 

(Sti;i'iii:n, 'J.  It  does  not  appear  that  in  the  absence  of  the 
note  tliei'o  was  any  evidence  of  crime,  any  evidence  of  foro-ery.) 

No"  and  oonsoipiently  no  foundaticm  for  saying-  the  ])rivi- 
loo-e  was  destroyed  which  pi'hna  fach'  existed.  In  lk>'<j.  v. 
Avei'ii,  8  ('.  it  I*.,  590,  this  case  of  lie.o  v.  Smith,  1  Phil.  & 
Arnold  on  Evidence,  US,  was  (jiiestioned  by  Patteson,  J,,  wlio 
later,  in  AVy.  v.  T>iln<'!/,  18  L.  .].  (M.  V.\  8t}';  1  Den.  C.  C,  319, 
withdraws  his  former  opinion.  In  /Ay.  v.  /[(n/nvo-d,  2  ().  & 
Iv.,  23^.  it  seems  that  the  court  held  that  the  forged  will  was 
not  intrnsted  to  the  attorney  in  ])rofessional  conlidence,  and 
(hcreloiv  that  he  ])roj)erly  ])rodnce<l  it  and  gave  evidence.  In 
R,<j.  v.  lu(rh-!i,  2  C.  ct  K.,  ;513;  1  Den.  0.  C,  197,  the  tlocision 
went  on  the  ground  that  the  witness  was  not  consulted  as  a 
solicitor,  but  was  only  acting  as  a  nioneydender.  The  case  of 
%.  V.  Tulnr,/,  18  L.  J.  (M.  ().),  80;  l"  Den.  (\  i\,  .",19,  325, 
shows  that  Wilde,  C.  J.,  was  of  o|)inion  that  if  a  solicitor  liad 
a  forged  deed  brought  to  him  by  his  client  he  would  iu)t  be 
entitled  to  go  before  a  magistrate,  and  if  he  did,  tliennigis- 
trate  conld  not  receive  his  statement  against  his  client.  Jicij. 
V.  Ildiil'/iis,  2  C.  &  K,,  S23,  is  a  cas(>  in  which  ('oilman,  ,T., 
held  tl.at  a  solicitor  ought  not  to  ])ro(luce,  on  a  trial  of  his 
client  III!'  perjury,  the  document  in  respect  of  which  the  per- 
jury w;i.s  (  Margcid,  that  document  having  come  into  his  hands 
in  the  conrsc  of  his  professional  em])loyment.  Suppose  it  be 
saidtliat.  tiuiiigh  Mv.  (ioodman  was  acting  professionally,  the 
defendants  w(M'e  not  consulting  him  in  a  legitimate  way  so  as  to 
entitle  ihciu  to  claim  privilege;  to  that  the  answer  is,  that  ajjart 
from  Mr.  (ioodman's  evidence  there  was  no  evidence  of  it.  It 
is  sutlieicnt  here  to  contend  merely  that  a  professional  man's 
mouth  is  not  to  be  opened  as  to  what  passed  with  hfni  in  what 
was  nriiim  fdclo  professional  conlidence,  without  evidence 
hein<f  lirst  given  to  show  that  no  professional  conhdenci!  couhl 
or  ou^iit  to  have  existed,  though,  as  we  contend,  authorities 
put  tile  matter  higluu'.  Independent  evidence  should  have 
been  called  to  destroy  the  privilege  before  the  solicitor  was 
examined,  and  the  case  as  stated  does  not  show  this. 

(Watkin  Williams,  J.    The  question,  certainly,  that  presses 


148 


AMERICAN  CRIMINAL  REPORTS. 


upon  nie  liere  is,  what  foumlation  was  laid  for  admitting l[r. 
(jroodmun's  evidenced) 

(liOiMos,  J.  That  is,  I  think,  probably  a  point  that  lias  to  be 
considered,  but  the  ])oint  at  the  trial  made  was  that  such  evi- 
dence was  in  itself  inadmissible.) 

Here  there  were,  so  far  as  it  ai>pears,  no  facts  to  dostrov 
privileo-e  given  in  evidence  before  Mr.  (ioodnian  was  culled. 
It  is  impossible  to  saj'  you  are  to  have  the  secret  of  the  client 
disclosed  in  public,  so  as  to  see  if  it  ought  to  be  disclosed. 
There  was  nothing  to  show  the  defendants  had  any  fraud  in 
view  when  they  Avent  to,  or,  indeed,  when  they  came  awav 
from,  the  solicitor.  They  went  to  see  what  they  might  lioiiestiv 
do,  and,  so  far  as  is  known,  did  nothing  dishonest  till  lon^ 
after,  and  certainly  th(\v  did  not  get  the  solicitor  to  aid  in  am 
dishonesty,  or  even  ask  him  to  do  so.  It  was  an  honest  pm 
fessional  consultation,  f'ould  a  iirisoncr's  solicitor  wlio  had 
questioned  his  client  with  a  view  to  his  defense  bo  put  intotlie 
box  and  forced  to  say,  in  answer  to  a  (juestion,  "Did  you  ask 
him  how  he  accounted  for  so  and  so?"  "  Ves,  I  did,  and  he 
could  not  account  for  it,"  or  ''lie  said  .so  and  so,"  win'ch  is  then 
plainly  proved  to  be  a  falsehood. 

Lastly,  the  question  for  the  court  is,  was  the  evidence  prop 
erly  received,  wliich  means,  was  it,  under  tlie  circmnstunces 
then  proved  in  evidence,  properly  received. 

WooUett  (  WlllinKjhhii  with  him),  for  tlie  ])rosecution.  Can  a 
consultation  with  a  view  of  committing  a  crinu'  be  |)rivilci,'ed; 
is  such  a  consultation  within  the  scope  of  a  solicitor's  cinplov 
mcnt?  That  is  the  question  raised.  Xo  point  was  made  that 
some  of  the  other  evidence  should  have  been  taken  before  Mr. 
Goodnum  was  called.  The  objection  was  that  tlie  evidonco 
was  not  evidence  that  could  l)e  received,  and  consequently  that 
is  the  only  point  reserved,  and  no  statement  is  nuule  in  tliu 
case  of  facts  and  circumstances  with  regard  to  the  intcsrpleader 
which  had  been  proved  before.  In  Jieg.  v.  Ortoti,  Shorthand 
Notet:,  vol.  3,  p.  2381,  which  was  a  trial  at  bar,  Cockburn,  C 
J.,  upon  objection  being  made  that  ii  document  souglit  to  be 
put  in  evidence  by  tiie  prosecution  was  inadmissible,  as  being 
intrusted  to  the  prisoner's  solicitor  professionall}',  rules  as  fol 
lows:  "I  take  it  that  if  a  matter  is  communicated  to  an 
attorney  in  the  confidential  relation  of  an  attorney  and  client, 


and  if  that  li 
a  fraud,  fi'uu 
for  which  tli^ 
„f  the  charac 
says:  "I  aiii  ( 
hold  that  the 
ilego.  any  pci 
power  which  i 
In  the  case 
p.rcMl.  iinvill 
(lorstood  that 
privilci^o  of  a 
tioii  or  with  r 
I  heliove  the 
an  attorney  ai 
to  ho  the  com 
suit  in;,'  the  at  t 
oftli('attoriie_^ 
•JUL  .l.(('h.), 
strun^iy.  and 

Tr.,  J 1  ;*;!».    11 

445;  14  Cox, 

I'lKii/jii'f),  o'2  r. 

1 ;  Wiiitsiiuiiih 
for  the  judge 
and  no  point  ; 
hero,  hut  the 
provi'(l,  could 

E.  aid:,  i 

but  has  left  i 
liiiveadmitloi 
The  rule  coll 
or  allowed  to 
first  given,  ai 
professional  ( 
fraudulent  or 

CiKovi;,  .1. 
be  allirnied, 
shall  delivei' 


>■.  % 


THE  QUEEN  v.   COX  AND  RAILTON. 


149 


and  if  tliat  has  been  done  for  the  purpose  of  working  out 
a  fraud,  fniud  wouUl  destroy  tlio  privilege,  for  the  purpose 
for  whicii  tlie  coiiununiciition  wiis  nuule  would  deprive  it 
of  the  character  of  a  i)rivileged  coninuinicution."  I.ush,  J.. 
siivs:  "I  am  disposed  to  put  it  on  still  wider  ground,  aiul  to 
hold  tiiat  the  law  does  not  allow,  under  the  name  of  priv- 
ilege, any  person  to  withhohl  evidence  which  is  within  his 
nower  whicli  may  be  used  in  sup[)ort  of  a  criminal  charge." 
hi  tlie  case  of  'Tn7J>orii>.'  v.  Lti.s/iuii/fo/i,  Shorthand  Notes, 
I).  5211,  I'ovill,  C.  .1.,  is  reported  as  saying:  "  It  uuist  not  be  un- 
derstood that  I  give  the  slightest  sanction  U)V  there  being  any 
privilege  of  a  client  who  consults  an  attorney  as  to  the  concoc- 
tion or  with  respect  tc>  the  connnitting  of  a  crime  or  a  fraud. 
Iljclieve  the  law  is,  and  properly  is,  that  if  a  party  consults 
iin  attorney  and  obtains  advice  for  what  afterwards  turns  out 
to  bo  the  commission  of  a  crime  or  a  fraud,  that  party  so  con- 
sulting the  attorney  has  no  privilege  whatever  to  close  the  lips 
oftli('attorn(y  from  stating  the  truth."  In  (idrt-sldc  r.  Outrttin^ 
20  h.  .I.lCh.j,  li;5.  11.'.,  AVood,  V\  ('.,  states  the  matter  very 
strongly,  and  calls  attention  to  Amir^l,  i/ i\  AikjIi  xrd,  \1  St. 
Tv.,  ll;!'.'.  lie  further  cited  /Ay.  c.  I>n,ru,,\  4;3  L  T.  iX.  S.), 
415;  U  Cox, -ist);  /,'i/sstl  r.  Jtir/,s,,/t,\)  Hare,  ;!ST;  (7,(fr/fiui  r. 
Ciiowhr.<i,  ;!2  L.  J.  (Ch.),  1>S4;  /-'nf/cff  i\  Jrfu;>/.s,  1  Sim.  ^N.  S.), 
1;  Wtidfiiriirlh  i\  //(i/ihs/nnr,  2  \>.  k  15.,  4,  n.  In  each  case  it  is 
for  the  judge  to  exeivise  his  discretion  as  to  such  evidence, 
and  no  point  as  to  the  exercise  of  such  discretion  is  reserved 
here,  hut  the  hinw  ([Uestion,  assuming  proper  circumstances 
proved,  could  this  evidence  be  legally  admitted ;' 

E.  C/(id>\  in  reply.  Tli(>  judge  ilecicled  nothing  absolutcdy. 
but  has  left  it  to  this  court  now  to  say  whether  lu!  ought  to 
have  adniit;e(l  the  evidence.  It  is  not  acpiestion  of  discretion. 
The  rule  contended  for  is  that  a  solicitor  shall  not  be  forced 
or  allowed  to  betray  ])roressional  conlidence  without  evidence 
first  given,  (i(>  r.rfrii,  to  slutw  that  the  case  is  not  one  whei'o 
professional  conlidenc(>  can,  or  ought  lawfidly  to  exist.  The 
fraudulent  or  criminal  parposo  should  be  proved,  not  assumed. 

OrmvK,  ,1.  We  are  all  of  oi)inion  that  this  conviction  should 
bealHrined,  but,  as  the  case  is  of  great  general  importance,  wo 
shall  deliver  a  consideivd  judgment  ou  a  futui'e  day,  endeavor- 


ii 


150 


AMERICAN  CRIMINAL  REPORTS. 


ing  to  define  the  principles  with  clearness,  to  act  as  a  guide  in 
future  cases. 

December  20,  1SS4.  On  a  subsequent  day  the  jud-mentof 
the  coui't  was  delivered  by  Stkimik.v,  J.,  as  follows: 

This  case  was  tried  bt>fore  the  recoi'dor  of  London  attlio 
Februiiry  sessions  of  the  central  criminal  court.  Tlic  defend. 
ants  were  convicted,  subject  to  a  case  rosoi'ved  for  our  opinion. 
The  case  was  argued  first  before  live  judgcjs  on  the  .'itli  of 
April,  and  afterwards,  on  account  of  its  great  imp.ii'tanco, 
before  ten  judges,  on  the  21st  of  June.  We  said  on  tliat  occa- 
sion that  Avo  were  unanimously  of  opinion  that  the  conviction 
must  be  conlirmed,  but  we  deferred  tlu.'  statement  of  our  rea. 
sons  in  order  that  they  might  be  given  with  due  fullness  and 
deliberation.  The  facts  were  as  follows:  The  two  defendants, 
Richard  Cobden  Cox  and  I{i(diard  ,b>linson  Kai  It  on,  wore  in- 
dicted for  a  conspiracy  with  intent  to  defraud  Henry  .Munster. 

The  indictment  was  s(^t  out  as  part  of  the  case. 

It  contained  six  counts,  and  was  ol)jected  to  on  grounds  whicL 
we  do  not  think  it  necessary  to  state,  as  we  were  all  of  opinion 
that  some,  at  least,  of  the  counts  were  good;  and  as  the  objcc 
tions  made  to  others  wei'e  not  insisttnl  on  in  argument.  Tin 
serious  (piestion  was  as  to  the  admissibility  of  the  evidoncooi 
a  solicitc^r,  which  was  given  under  the  following  circumstances: 
On  the  lUh  of  April,  ISSI,  the  two  defendants  entered  intoa 
partnership,  in  the  business  of  newspaper  proprietors,  witli 
respect  to  a  newspaper  called  the  Brhjldonhin.  in  Fehruarv, 
1882,  Mr.  ]\[unster  brought  an  action  against  Knilton  for  a 
libel  which  appeared  in  that  paper.  On  the  2lth  of  ,Iinu>,  ISS;;, 
the  action  ended  in  a  verdict  for  the  plaintilf  for  40.v.  and  co.<ls, 
as  between  solicitor  and  client.  The  costs  were  taxed  on  tlit 
18th  of  August,  and  on  the  20th  (!xecution  was  issued  against 
Railton  for  the  amount.  The  sheriff  was  mot  by  a  bill  of  sale 
from  IJailton  to  Cox.  dated  the  12th  of  August,  18S2,  and  with- 
drew. An  interpleaihn-  action  to  test  the  validity  of  tlio  bill 
of  sale  was  tried  on  the  1.5tli  of  January,  1883.  At  that  iictioii 
the  deed  of  partnei'shipof  the  l»thof  Ai)ril,  1881,  was  |)i'oducwl, 
boaring  upon  it  an  indoi-sement  ])urporting  to  be  a  miiuiorandiini 
of  dissolution  of  partnership,  dated  the  .'M  of  .laauary,  1 SS2.  TIn' 
case  for  the  prosecution  was,  that  the  bill  of  sale  was  a  fraudii 


lent  bill  of  sal 

Pvailton  and  ( 

depriving  ^Ir. 

the  mciiioran 

on  the  deed,  n 

but  subso(iuen 

this  case,  Mr. 

evidence  liavi 

overruled):   " 

Cox  came  to  i 

residt  of  the  \ 

thing  bo  done 

cutioui''   1  sal 

•Could  the  pr 

a^erT    1  sni(: 

•  That  won  t  c 

•You  cannot, 

any  one  know 

said, '  No,  not 

•Then  you  d 

tainly  not.' 

(itHcc.    Not  hi 

The  intorviev 

fee.    It  was  ( 

kept  secret.    . 

The  (juostioii 

rightly  admit 

jury,  that,  so 

oouoernod,  th 

preparatory  t 

conspiracy  t( 

solicitor,  app 

suited  in  the 

opinion  in  go 

a  client  appli 

tate  or  togui' 

the  legal  adv 

advice  is  wai 

iloged.    AVe 

that  no  such 


THE  QUEEN  v.  COX  AND  RAILTON. 


161 


lent  bill  of  sale  of  the  partnership  assets,  entered  into  between 
Railton  and  Cox  while  they  were  partners,  for  the  ])urpose  of 
dem'iving  Mr.  ^funster  of  tlie  fruits  of  his  judgment,  and  that 
the  mcnioranduiu  of  dissolution  of  partnersliip  was  indorsed 
ontlie  deed,  not  on  tiio  '2d  of  Januai-y,  1SS2,  when  it  bore  date, 
but  subso([uontly  to  .Mr.  Muuster's  judgment.  In  order  to  ])rove 
this  case,  Mr.  (Joochuau,  a  solicitor,  was  called,  who  said  (his 
evidenc'o  having  hwn  objected  to  and  the  objection  having  been 
ovomilod):  "  On  the  L'sth  of  June,  or  thereal)outs,  Kailton  and 
Cox  came  to  nie.  KailtdU  said,  '  I  suppose  you  liave  heard  the 
result  of  llie  Munsler  case^'  I  said,  *  Ves.'  He  said,  "Can  any- 
thiii"bo  done  to  prevent  the  property  being  seized  under  an  exe- 
cutiuuT  1  said,  '  ( )nly  a.  sale  to  a  h<ni<i ^fidc  purchaser.'  lie  said, 
•Cuukltlie  i)ropei'ty  be  sold  and  I  remain  in  jiossession  as  man- 
iiuer?'  1  said.  '  Xo,  you  must  get  out  of  possession.'  lie  said, 
•That  won't  do;  can  I  give  a  bill  of  sale  to  ]\Ir.  Cox?'  I  said, 
'You  cannet,  because  of  the  pai'tnei'ship.'  IJailton  said,  '  Does 
;invone  know  of  the  partnersliip  besides  you  and  oui'selves?'  I 
said,  'Xo,  not  that  1  am  aware  of;  oidy  my  clerks.'  Cox  said, 
•Then  you  do  not  think  a  bill  of  sale  will  do?'  I  said,  'Cer- 
tiiiuly  not.'  They  then  asked  my  feci  and  i)aid  it.  and  left  the 
iitlicc.  Xothing  was  saiti  about  a  dissolution  at  that  interview. 
The  interview  was  with  me  as  a  solicitc^r.  and  I  was  [)aid  my 
fee.  It  was  ex[)ressly  arranged  that  tlu;  partnership  should  bo 
kept  secret.  Xothing  was  said,  either  way,  about  a  dissi)lution.'' 
The  question  for  our  decision  was  whethiM-  this  (ni(h'nce  was 
rightly  admitted.  "\V"e  must  take  it.  after  the  verdict  of  the 
jury,  that,  so  far  as  the  two  defendants.  Kailton  and  Cox,  were 
eoiieernod,  their  communication  with  Mi-.  (Joodman  was  a  step 
preparatory  to  the  commission  of  a  criminal  otlense,  namely,  a 
eoiispiracy  to  defraud.  The  conduct  of  Mr.  (Joodman.  the 
solicitor,  appears  to  have  been  un(d)jectionable.  He  was  con- 
sulted in  the  common  course  of  business,  and  gave  a  i)i'o[)er 
opinion  in  good  faith.  The  question,  therefoi-e,  is  whether,  if 
a  client  ap))lies  to  a  legal  adviser  for  advice  intended  to  facili- 
tate or  to  guide  the  client  in  the  commission  of  a  crime  or  fraud, 
the  legal  adviser  being  ignorant  of  the  purpose  for  which  his 
advice  is  wanted,  the  communication  between  the  two  is  priv- 
ileged. "We  expressed  our  opinion  at  tin;  end  of  the  argument 
lliat  no  such  privilege  existed.     If  it  did,  the  result  would  bo 


I 


I 


'■?■ 


ii 


152 


AMERICAN  CRIMINAL  REPORTS. 


that  a  man  intending  to  commit  treason  or  murder  ini^lit  safelv 
take  legal  advice  for  the  purpose  of  enabling  hiin.selt'  to  do  so 
with  impunity,  and  that  the  solicitor  to  whom  the  iippHcatioii 
Avas  made  Avould  not  be  at  liberty  to  give  information  against 
his  client  for  the  purpose  of  frustrating  his  criminal  ])iii-pose. 
Consequences  so  monstrous  reduce  to  an  absurdity  any  principle 
or  rule  in  which  they  are  involved.  Upon  the  fullest  exam- 
ination of  the  authorities,  wo  believe  tliat  tliey  are  not  war- 
ranted by  any  ])rinciple  or  rule  of  the  law  of  England,  but  it 
must  be  admitted  that  the  law  upon  the  subject  has  ncvei-beoii 
so  distinctly  and  fully  staled  as  to  show  clearly  that  these  con- 
sequences do  not  follow  from  principles  which  do  foi-ni  nartof 
the  law,  and  which  it  is  of  the  highest  inipoi-tance  to  niuintaiii 
in  their  integrity.  AVe  nuist  also  observe  that  decisions  have 
been  given,  one  by  the  court  of  common  pl{>as,  'ind  several  In- 
single  judges  sitting  in  the  crown  courts,  or  at  nisi  jirius,  which 
have  afforded  some  countenance  to  the  supjMjsit  ion  that  the  law 
of  England  is  committed  to  docti'ines  from  which  these  ouiiso- 
quences  might  be  deduced.  We  propose,  accoi'dingly.  lirst  to 
state  what,  upon  a  full  consideration  of  tlu;  cases,  appears  tons 
to  be  the  principle  upon  which  the  ])resent  cas(!  nuist  he  de- 
cided, and  then  to  examine  the  principal  cases  in  which  it  has 
been  applied,  with  the  view  of  showing  that  our  decision  isnot 
inconsistent  with  the  great  majority  of  them,  though  it  uiidoiiljt- 
edly  does  differ  from  others.  The  case  whieh  has  always  been 
regarded  as  the  great  leading  authority  on  the  (luestion  of  the 
privilege  of  legal  advisers  is  UraiioiKjIi  r.  (iasl,; II.  1  My.  k  K., 
08,  decided  by  Lord  IJrougham  in  ls.'>.'}.  The  (|  nest  ion  in  that 
case  was  whether  a  solicitor,  (-Jaskell,  charged  with  a  fraud 
upon  Greenough,  arising  out  of  the  affairs  (jf  Darwell,  could  be 
compelled  to  disclose  to  Greenough  communications  between 
Gaskell  and  Darwell,  giving  an  account  of  the  transactions 
which  led  to  the  commission  of  the  alleged  fraud,  and  it  was 
held  that  he  could  not.  In  this  case  the  rule  as  to  pi-ofessional 
communications  was  laid  down  in  the  following  wortls:  "If, 
touching  nuitters  that  come  within  the  ordinary  scope  of  pro- 
fessional employment,  they  "  (legal  advisers)  "  receive  a  coiiuiiu- 
nication  in  their  ])rofessional  capacity,  either  from  a  client  or  on 
his  account,  and  for  his  benefit  in  the  transaction  of  his  business. 
or,  which  amounts  to  the  same  thing,  if  they  commit  to  paper, 


in  tlio  course  ^ 
they  Icnowon 
they  arc  not 
bound  to  with 
the  informal i» 
equity,  either 
'•The  foanda 
.  .  "It  is  o 
not  be  ujihold 
not  go  on  wit 
the  practice  o 
and  obligatioi 
ings."  Lord 
of  the  rule  .so 
lions  to  it  are 
accepted  and  i 
authority,  but 
either  uader  t 
in  which  it  is 
to  rest  caiuiot 
thenis(dves.  oi 
Iheiireteetion 
wise  than  inji 
the  adaiinistri 
fall  within  th 
ance  of  a  crin 
.scope  of  prof( 
make  this  pla 
draw  wills, 
structs  a  solic 
testator,  execi 
the  solicitor 
monstrous  to 
(linary  scope 
ismadcanun( 
It  is  probable 
Brougham's  i 
Giuhll,  1  .Mv 
of  exception 
plicitly;  but 


THE  QUEEN  v.  COX  AND  RAILTON. 


153 


in  tlio  course  of  tlieir  emplo^'mont  on  his  behalf,  matters  which 
thev  know  only  tlirouj^h  their  professional  relation  to  the  client, 
tliev  are  not  only  justified  in  withholding  such  matters,  but 
lioiind  to  withhold  them,  and  will  not  be  compelled  to  disclose 
the  informntion  or  ])roduce  the  pa])ers  in  any  court  of  law  or 
enuitv.  either  as  i)arty  or  as  Avitness."  Lord  Ih'ou<^hani  adds: 
'■The  foiuidation  of  this  rule  is  not  ditiicult  to  discover." 
'•It  is  out  of  regard  to  the  interests  of  justice,  which  can- 
not be  upliolden,  and  the  administration  of  justice,  Avhich  can- 
not fo  on  without  the  aid  of  men  skilled  in  jurisprudence,  in 
the  pniotice  of  the  courts,  and  in  those  matters  aU'ecting  rights 
and  obligations  which  form  the  subject  of  all  judicial  proceed- 
ini''.s."  h(»rd  I'nHigham  then  i>roceeds  to  comment  on  the  terms 
of  the  rule  so  stated,  and  to  show  that  many  ap[)arent  excep- 
tions to  it  are  not  really  within  its  terms.  This  rule  has  been 
accepted  and  acted  upon  ever  since,  and  we  fully  recognize  its 
authority,  but  we  think  that  the  ])i"esent  case  does  not  fall 
cither  under  the  reason  on  which  it  rests,  or  within  the  terms 
in  wiiich  it  is  expressed.  The  reason  on  which  the  rule  is  said 
to  rest  caiuiot  include  the  case  of  cctmmunications,  criminal  in 
themselves,  or  intended  to  further  any  criminal  jnirpose,  for 
thepnjtection  of  such  communications  cannot  possibly  be  other- 
wise tliiui  injurious  to  the  interests  of  justice,  and  to  those  of 
the  adiuinisti'ation  of  justice.  Nor  do  such  communications 
fall  witiiin  the  terms  of  the  rule.  A  communication  in  further- 
ance of  a  criminal  purpose  does  not  "come  into  the  ordinary- 
scope  of  professional  employment."  A  single  illustration  will 
make  this  plain.  It  is  part  of  the  business  of  a  solicitor  to 
draw  wills.  Suppose  a  ])erson,  personating  some  one  else,  in- 
structs a  solicitor  to  draw  a  will  in  the  mime  of  the  su[)j)osed 
testator,  executes  it  in  the  name  of  the  supposed  testator,  gives 
the  solicitor  his  fee,  and  takes  away  the  will.  It  would  bo 
monstrous  to  say  that  the  solicitor  was  employed  in  the  or- 
dinary scope  of  professional  employment,  lie  in  such  a  case 
is  made  an  unconscious  instrument  in  the  commission  of  a  crime. 
It  is  probable  that  if  cases  of  this  kind  had  been  i)resent  to  Lord 
Brougluun's  mind  when  he  delivered  judgment  in  Greenoiujh  v. 
Gaskdl,  1  ^[y,  iSc  K. ,  98,  he  would  have  inserted  words  by  way 
of  excei)tion  or  explanation  to  express  his  meaning  more  ex- 
plicitly; but  the  caution  with  which  ho  worded  the  principle 


151 


AMERICAN  CRIMINAL  REPORTS. 


a])poars  to  us  to  have  the  same  effect  as  tlie  insertion  of  suclia 
qualiiication  would  have  had.  It  seems  to  us,  ut  all  events, 
that  the  case  which  we  are  now  considering'  falls  lU'illicv  within 
the  letter  nor  the  spirit  of  the  description  o-ivni  hy  Lord 
Brougham  of  the  privilege  of  legal  advisors.  AVe  will  now  stiit; 
in  the  order  of  time  the  cases  which  conlirni  us  in  this  view.  In 
Foil ett  V.  J<frr ;/<'»,  \  Sim.  (N.  S.),  1,  a  defendant  was  intorm- 
cated  as  to  letters  written  hv  her  to  her  solicitor,  said  to  kve 
been  intended  to  carry  out  a  fraud.  It  Avas  hold  that  whatshc 
proposed  to  do  was  not  fraudulent,  but  at  the  end  of  his  jiulg. 
ment  Lord  Cranworth,  then  vice-chancellor,  said:  "  It  is  not  ac- 
curate to  speak  of  cases  of  fraud  contrived  by  the  eliciit  and 
solicitor,  in  concert  together,  as  cases  of  exce[)tion  tf)  llio  gen- 
eral rule.  They  are  eases  not  coming  Avithin  the  rule  itsdf; 
for  tiie  rule  does  not  apply  to  all  which  passi's  between  acliont 
and  his  solicitor,  but  oidy  to  what  pass(>s  between  them  in  ]n'o- 
fessional  confidence,  and  no  court  can  permit  it  to  be  snidthat 
the  contriving  of  a  fi-aud  can  form  part  of  the  pl•ofe^;■^illnal  uc- 
cui)ation  of  an  attorney  or  solicitcjr." 

It  is  true  that  this  is  only  a  tHi'tinn.  but  it  shows  decisivoly 
lioAV  Lord  Cranworth  understood  the  rule  on  this  sidiject.  and 
this  suggests  another  observation.  In  order  that  the  iiiie  may 
apply  there  must  be  both  [)rofessional  confidence  and  pi'o^  s-iional 
employment;  but  if  the  client  has  a  criminal  object  in  view  in 
his  communications  with  his  solicitor.  on(>  of  theseelcMiiiiitsiniist 
necessarily  be  absent.  The  client  must  eith(>r  conspire  with 
his  solicitor  or  deceive  him.  If  his  criminal  object  is  avowed, 
the  client  does  not  consult  his  adviser  professionally,  because  it 
cannot  be  the  solicitor's  business  to  further  any  ei'iminal  ob- 
ject. If  the  client  does  not  ax'ow  his  object,  he  reposes  no  con- 
fidence, for  the  state  of  facts  which  is  the  foundation  of  tlie 
sup[)osed  confidence  does  not  exist.  The  solieiloi'"s  advice  is 
obtained  by  a  fraud.  To  return  io  our  former  illii;-.lr,i!ion.  H 
A.,  projwsing  to  foi'ge  a  will,  says  to  !>.,  a  solicitoi',  "  forge  for 
me  a  will  in  the  name  of  (\,"  he  asks  B.  to  commit  a  crime, 
Avhich  is  not  15. 's  professional  business.  If  he  says,  "1  ani  C. 
and  I  Avant  you  to  make  m\^  Avill  for  me,"  he  reposes  no  ctmli- 
dence  in  B.,  but,  on  the  contrary,  commits  a  gi-oss  fraud  upon 
him.  In  1851  the  case  of  liussel  v.  Jaclison,  9  Hare,  oST,  was 
decided  before  Turner,  V.  C.   It  was  alleged  that  a  testator  had 


left  certain  ] 
exaiaiaed  as 
tion  was  nun 
had  been  coi 
ing  it.  Tun 
all  as  bet  wee 
client's  intei 
conununicati 
were  conceal 
the  conunun 
purpose."  ^ 
that  the  com 
He  added.  " 
that  the  exi; 
privilege  att 
a  ]nirty  to  a 
with  liiui  up 
is  no  jiarl  of 
be  suid  that 
client  as  to  t 
Gaiisldf  r. 
Katlu'rly,  tl 
Una  of  woo 
their  sale  cd( 
that  the  tni 
delivered  a 
the  hcad-nof 
are  not  ])i'iv 
tions  in  tin 
directly  on  i 
there  is  no  c 
cannot  niaki 
entithnl  to  ( 
the  audacitA 
tention  on  ; 
afterwards 
professional 
"  As  rega 
question  ha 
which  has  b 


THE  QUEEN  v.  COX  AND  RAILTON. 


•I     N'    h/ 

lot) 


left  certain  projicrty  upon  a  secret  trust,  and  liis  solicitor  was 
cxauiiniHl  as  to  the  (;xistence  of  the  trust  and  its  nature.  A  mo- 
tion was  made  to  suppress  his  deposition,  on  the  <iround  that  he 
had  been  compelled  to  violate  i)rol'essionid  conlidencc  in  niak- 
iiiir  it.  Turner,  V.  C,  held  that  the  privile;^e  did  not  exist  at 
all  as  between  diU'erent  people  clainiin<^'  under  the  client,  as  the 
client's  intentions  were  more  likely  to  Ije  carried  out  if  liis 
connnnnieations  with  his  solicitor  were  known  than  if  they 
were  concealed.  Tt  was  further  objected  that  the  disclosure  of 
the  coinHUinications  "  might  lead  to  the  disclosure  of  an  illegal 
purpose."  Sir  ( icorge  Turner  observed  on  this  that  he  tlujught 
that  tlieeomuuniication  could  not  be  protected  on  that  account. 
He  added,  "  On  the  contrary.  I  am  very  much  dis])osed  to  think 
that  the  existence  of  the  illegal  pui-pose  would  prevent  any 
privilegi'  attaiddng  to  the  communication.  Whei'e  a  solicitor  is 
a  ])iiity  to  a  Iraiid.  no  privilege  attaches  to  the  communications 
with  liiiii  npon  \\w  subject,  because  the  contriving  of  a  fraud 
is  no  pail  of  his  duty  as  solicitor;  and  I  tliiidv  it  can  as  little 
be  Said  that  it  is  part  of  the  duty  of  a  solicitor  to  advi.sc  his 
client  as  to  tlie  means  of  evading  the  hiw.''  In  18.^>T  the  case  of 
Oaiisiilr  r.  Oiilnini,  20  L.  J.  (('h.),  11:5.  was  decided  i)y  Lord 
Ihitherly.  tiien  Sir  W.  Page  AVood.  It  was  a  cas(^  in  which  a 
lirni  of  wool  brokers  sought  to  restrain  a  man  wiio  had  been 
their  sale  elei'k  from  disclosing  their  transactions,  lie  replied 
that  tile  transaeti(jns  were  fraudulent.  Thc^  vice-chancellor 
delivered  a  judgment,  which  we  think  is  w<dl  summed  up  by 
the  head-note:  '"Cijufidential  communications  involving  fraud 
are  not  ]irivileged  from  disclosure.'''  The  following  observa- 
tions in  the  judgment  ai)pear  to  us  very  weighty,  and  bear 
directly  on  the  pri^sent  (|iit'stioii :  "The  true  doctrine  is,  that 
there  is  no  conlidi'iice  as  to  the  disclosure  of  iniipiity.  You 
cannot  make  me  the  conlidant  of  a  crime  or  a  fraud  and  bo 
entitled  to  (dose  uj)  my  lips  upon  any  secret  which  y<m  have 
the  audacity  to  disclose  to  me  ndating  to  any  fraudulent  in- 
tention on  your  part:  such  a  contich.'nce  cannot  exist."  He 
afterwards  refers,  by  way  of  illustration,  to  the  question  of 
professional  conlidence. 

"As  regards  the  question  before  courts  of  justice,  "wlien  tho 
question  has  been  whether  a  witness  ought  to  disclose  that 
which  has  been  communicated  to  him,  I  think  the  authorities 


15C 


AMERICAN  CRIMINAL  REPORTS. 


largely  prepondoi-uto  for  allowing  no  such  protect  ion  oven  in 
one  ol'  tlio  most  conlUlential  relations  —  that  between  attoniev 
and  client;"  and  after  referring  to  some  cases,  which  we  shall 
examine  more  fully  hereafter,  lie  says  that  lie  ado[)ts  as  his 
own,  language  used  in  argument  in  the  case  of  Aini,sl,ij  (, 
Anyhsea,  17  Howell,  St.  Tr.,  li;V.>,  by  Sergeant  Tisdall:  "I  shall 
beg  leave  to  consider  whether  an  attorney  nuiy  he  examined 
to  anv  matter  wliich  came  to  his  knowledge  as  an  altornov 
If  he  is  employed  as  an  attorney  in  any  unlawful  or  wicked 
act,  his  duty  to  the  ])ublic  obliges  him  to  disclose  it;  no  private 
obligations  can  dispense  with  tluit  universal  one  which  lies  on 
every  meml^er  of  society  to  discover  every  design  whicii  mav 
be  formed  contrary  to  the  laws  of  society  to  destroy  the  |)ub- 
lie  welfare."'  The  vice-chanci'Uor  (pu»tcs  witli  appr(jl)ation 
parts  of  the  judgment  of  the  judges  in  the  same  case  ami  ti 
much  the  same  elfect.  The  lasf  of  this  sei'ies  of  cases  to 
"which  we  shall  refer  ajipears  to  us  to  be  dir.'ctly  in  point  in 
the  present  case.  It  is  part  of  the  case  of  /Ay.  i\  Ordm. 
Shorthand  Xotes,  vol.  3,  p.  l».'5sl,  for  perjury.  Orton  was  in- 
dicted for  perjui'v  in  denying  tliat  he  was  Oi'ton  and  alliriniiii; 
that  he  was  Tichborne.  Ife  gave  ]\[r.  Holmes,  a  solicitor,  in- 
structions to  prei)are  a  will  <lisj)osing  of  the  propei-ty  to  wliicli 
he  said  he  was  entitled;  and  as  part  of  the  evidence  a;;;rnw 
him  consisted  in  the  allei-'cd  resemblance  of  his  handv.ritinc 
to  that  of  Orton,  and  its  alleged  ditrerence  from  that  of  Tich- 
borne, the  instructions  for  the  will  were  tendered  for  the  inii- 
pose  of  enforcing  this  argument.  They  were  obji^cted  to  on 
the  ground  of  ])rofessional  privilege,  and  the  court  <lea!t  with 
the  nuitter  as  follows:  "Cockburn,  C.  J.  We  must  assnnio, 
2)i'iini(  fdfle,  for  the  purpose  of  the  in(|uiry,  but  oidy  for  that 
purjjose,  that  the  purpose  which  the  defendant  had  in  seeking: 
to  obtain  these  estates  which  he  ])roposed  here  to  dispose  of 
by  the  will  for  which  he  gave  instructions  to  ^fr.  Holmes  was 
a  fraudulent  purpose  —  that  of  obtaining  estates  to  which  ho 
Avas  not  entitled.  Then  the  principle  on  which  we  proceed  is 
this:  That  where  anything  is  done,  any  communication  made 
from  a  client  to  an  attorney,  with  reference  to  a  fraudulent 
purpose,  the  privdege  does  not  exist;  the  fraudulent  character 
of  the  communication  takes  away  the  privilege.  Xow,  hero, 
assuming  hypothetically,  for  the  mere  i)urpose  of  the  argu 


mcnt,  that  w 
the  j my  will 
was  cn;,'ag(Ml 
which  he  wa? 
which  will  th 
ac(iuire  are  ti 
estates,  or  jif 
attorney  and 
this  schrme,- 
of  having  th( 
it y  and  carno 
whicli  we  ass 
then  that  is  ' 
beforehand  tl 
was  not  ontit 
the  attorney, 
would  not  be 
ing  of  the  in 
himself  hone 
purpose  in  vi 
with  the  vie\ 
of  caiTving  ( 
the  privilege 
not  for  its  in 
still  affects  t 
to  take  great 
careful  than 
thing,  it  still 
such  a  quest  i 
pose  was  a  f ' 
presented  to 
ion  as  to  the 
that  questio 
think  it  is  ad 
am  disposed 
the  law  does 
son  to  withh 
be  used  in  si 
In  the  ca 
p.  5211,  out  ( 


.:r 


THE  QUEEN  r.  COX  AND  RAILTON. 


1 


n 


mcnt,  tliat  wliich  is  the  subject-iiifittor  of  tliis  itKjuiry,  wliich 
the  iiu'V  \\ '"  '''i^'^'  eventually  to  determine,  tliiit  the  defondant 
was  cn<''iif,'e»l  in  a  fraudulent  scheme  to  ac(iuire  estates  to 
wliicli  lie  ^v;ls  not  entitled,  and  gives  instructions  for  a  will,  by 
wliicli  will  tlit'se  estat(.'s  which  he  thus  fraudulently  seeks  to 
acquire  .'ire  to  he  disjxtsed  of,  and  amongst  (jther  tiling:^  these 
estates,  or  portions  of  them,  are  intended  to  be  given  to  his 
attornov  and  other  persons  who  are  co-ojwrating  with  him  in 
this sclitine, —  now,  inasmuch  as  this  would  bo  for  the  purpose 
of  liaving  tlie  etfect  of  stimulating  the  attorney  to  more  activ- 
ity and  earnestness  in  assisting  him  to  carry  out  this  scheme, 
whicii  we  assuuie  for  the  purpose  is  l)ased  in  fraud  and  ini([uity, 
then  that  is  (Jcliorx  the  privilege.  If  he  had  told  his  attorney 
beforehand  that  he  was  seeking  to  acquire  estates  which  he 
was  not  entitled  to.  and  employed  the  attorney  for  the  purpose, 
the  attorney,  however  innocent  in  the  one  case  —  of  course  he 
wouhl  not  1)0  innocent, —  but  assuming  the  attorne}'  knew  noth- 
inffof  the  iniijuity  or  wickedness  of  the  purpose,  but  believed 
himself  honestly  employed,  yet  if  the  client  had  a  dishonest 
purpose  in  view  in  the  communication  he  makes  to  his  attorney 
with  the  view  of  making  the  attorney  the  innocent  instrument 
of  carrying  out  the  fraud,  it  deprives  the  communication  of 
the  privilege.  So  I  think  here  that  if  the  communication  has 
not  for  its  immediate  object  the  carrying  out  of  a  fraud,  but 
still  affects  the  accom])lishment  of  it  by  inducing  the  attorney 
to  take  greater  care,  and  to  use  more  diligence  and  to  be  more 
careful  than  he  otherwise  would  bo  in  the  furtherance  of  the 
thing,  it  still  comes  to  the  same  thing.  (.)f  course,  in  deciding 
such  a  question,  we  must  for  the  purpose  assume  that  the  pur- 
pose was  a  fraudulent  one,  because  that  is  the  way  the  case  is 
presented  to  us.  Of  course  we  are  not  pronouncing  any  opin- 
ion as  to  the  affirmative.  We  have  still  the  inquiry  involving 
that  question,  but  whatever  further  inquiry  there  may  be  I 
think  it  is  admissible."  Mellor,  J.,  agreed.  Lush,  J.,  said:  "  I 
am  disposed  myself  to  put  it  on  this  ground,  and  to  hold  that 
the  law  does  not  allow,  under  the  name  of  privilege,  any  per- 
son to  withhold  evidence  which  is  within  his  power  which  may 
be  used  in  sujiport  of  a  criminal  chai'ge." 

In  the  case  of  Tlchhorne  v.  L>ishi)i(jton,  Shorthand  Notes, 
p.  5211,  out  of  which  the  prosecution  of  Orton  for  perjury  arose, 


h 

III 


Mil' 


158 


AJIi:iUCAN  CRIMINAL  REPORTS. 


I^ovill,  r.  -T..  nt  tlio  close  of  the  case,  said :  "  I  boliovo  tlio  law 
Is,  iiiul  in-opei'ly  is,  that  if  a  party  consults  an  attonioy.  and 
obtains  advice  for  wliat  afterwards  turns  out  to  bo  the  commis- 
sion of  a  ci'ime  or  a  fraud,  that  party  so  consulting-  the.  attor- 
ncy  has  no  privilege  whatever  to  close  the  lips  of  tli(!  attornev 
from  statin;;'  tlie  truth.  Indeed,  if  any  such  jM'ivilcun  slioiiM 
1)1'  coiitendcil  for,  or  existed,  it  would  work  most  ^ivicvoiis 
liardshi))  on  an  attorney,  who,  after  he  had  been  consiiltid 
upoi\  wliat  subse(]uently  appeared  to  be  a  manifest  ci'iuicaiiil 
fraud,  would  have  his  lips  closed,  and  mi;;lit  jilace  liimina 
very  serious  position  of  bein;,^  suspei'tc<l  to  be  a  ]»ai'ty  to  the 
fraud,  and  without  his  havin^i"  an  opportunity  of  e.\cul]);uin5r 
liimself.  .  .  .  There  isno  privile^ic  in  tlu'(;ase  which  I  have 
su;i;gestod,  of  a  party  consultin;^  another,  a  professional  man. as 
to  what  may  afterwards  turn  out  to  bo  a  crime  or  fraud,  ami  tlic 
best  mode  of  acconi|)lishing  it." 

Upon  these  grounds,  we  ctmsider  that  the  question  asked  of 
Mr.  Goodman  in  the  j)resent  case  was  ])roperly  put  and  an- 
swered.    AVe  now  jiroceed  to  consider  the  cases,  some  of  wliioli 
have  produced  a  ditferent  impression.     AVe  jnay  lirsL  shortly 
notice  three  chancery  cases  to  which  we  have  been  rcfcrivil. 
In  one  of  these.  KlIIij  v.  Jacl'Kon,  13  Ir.  Ecj.,  120,  it  was  dccidnl 
that  a  solicitor  who  had  suggested  a  fraud  to  his  client  ('(1111(1 
not  claim  privilege  on  the  ground  that  his  knowledge  ol'  the 
matter  was  derived  from  his  client.     In  the  other  two  —  Mum- 
ington  v.  3Ionii/}f/to7i,  2  J.  &  II.,  097,  and  Charlton  v.  Ounhr-i, 
32  L.  J.  (Cli.),  284, —  it  was  held  that  where  client  and  solicitor 
Avere  co-cons})irators  in  a  fraud,  the  solicitor  must  bo  eliargcil 
with  the  fraud  if  discovery  was  required  of  him,  but  nothing 
was  said  as  to  the  case  of  fraudulent  or  criminal  communica- 
tions by  a  guilty  client  to  an  innocent  solicitor.     We  may 
accordingly  pass  by  these  cases  without  further  notice.    The 
cases,  decicUnl  at  lu'sl  2>i''ius  or  in  the  courts  of  common  law, 
are  as  follows,  taking  them  in  order  of  time:     The  lirst  is 
AnnoHlcij  V.  AiKjIr.soi,  IT  St.  Tr.,  11:51),  triced  in  Dublin  in  17-13. 
We  have  abvady  menticmed  the  principal  point  in  this  case,  as 
having  been  (pioted  with  approval  by  Lord  Ilatherly  in  GaH- 
side  V.  Outmm,  26  L.  J.  (Oh.),  113.     The  question  was  whether 
Lord  Anglesea  had  caused  Annesley,  the  true  heir  to  the  prop- 
erty, to  be  kidnapped  and  carried  off  to  America,  in  order  that 


e\:t 


Lord  An-'k'.^'' 
olfereil  was  tl 
prosecute  .\n 
person  wlioui 
..frivo  t'l  •!.<"' 
the  reiiKirk- 
made  on  tri 
Ids",  (k'('iil<'tl 
I'oi'Mvd  vouch 
attorney,  wa? 
iH'forc  which 
mimt  was  m 
jrrant  it.     1 1 
hands.    Tlici 
them  to  hiiii 
ited  tlicin  wi 
defense.    Tl 
decided  in  1: 
wasfraudulc 
posed,  inuou 
whom  the 
assi(,mni('nt.  < 
cxecutioM  liai 
of  conunou  y 
,TJ.)  held  th; 
This  case  cl 
the  only  (list 
was  that  the 
cations  niad( 
ingly,  do  nol 
to  which  we 
supported  or 
he  oi)posed, 
ities  which  v 
Ci'omarJi  v.  , 
otigh  V.  Gail 
cited  only  a; 
and  the  pai 
cussed  or  nn 


TIIK  QUEEN  V.  COX  AND  RAILTON. 


159 


Lord  Annlrsca  mij^'lit  enjoy  tho  family  estates.    Tlio  evidence 
oirorod  wii^  tl'i't  '""'"'^  An<;losca  had  employed  an  attorney  to 
Diusociitv  Aniu'slcy  for  murder  in  respect  of  tiio  death  of  a 
poison  wlintii  Aniicsloy  had  accidentally  killed,  sayin^'  he  would 
"frivf  i'ln,()n(t  if  lie  could  ^^'ot  him  han<j:ed,"     On  this  evidence 
tlic  nMii.'irks  already  (jiiotcd,  and  others  to  the  same  elfect,  were 
iimdo  on  ti'ial  at  l»ar.     The  next  case  was  lu,/'  r.  /)/,fo/i,  .">  I5urr., 
IdsT,  decided  in  IT'l"*.     In  lliis  case  one  Pearso  had  |)ro(hice(l 
fop'vd  vouchers  l)el'(»re  a  master  in  chancery,  an<l  Dixon,  his 
attorncv.  was  suhpcenaed  to  produce  them  to  tlu;  j^rand  jury 
before  wliicli  Peaidi  was  indicted.     He  refused,  and  an  attach- 
ment was  111  »ved  .for  a;j,ainst  liim,   but  tlic  court  refused   to 
oTiiut  it.     It  does  not  appear  how  the  pajx^rs  came  into  Dixon's 
liiUids.    Tlici'e  is  certainly  nothing  to  sliow  that   Peacli  fj^ave 
tlicm  to  liiiii  for  any  uidawful  purpose,     lie  nuiy  liav(;  depos- 
ited tlu m  witli  him  after  the  crime,  and  for  the  purpose's  of  his 
defense.    Tiu^  next  case  is  CrnnKick  v.  Ilinthi'()ii\  2  15.  c^  ]>.,  4, 
decided  iu  isi'".     In  tliis  case  tlie  (picstion  was  \vlu3th(n'  a  deed 
was  IVaiiduIcMit.  and,  "  to  jirove  tlie  fraud,  the  defendant  pro- 
posed, anunin'  <)th<'r  evidence,  to  call  Smith,  an  attorney,  to 
whom  the  father"   (the  assij^-nor)  "  had  apjtiied  to  di'aw  the 
assignment,  and  who  had  refused  to  draw  it.  knowing-  that  an 
execntion  had  been  issued  against  \\w  father.''     The  full  court 
of  common  pleas  (Dallas,  ('.  d.,  aiul  IJorrough  and  liichardson, 
JJ.)  held  that  tliis  evidence  was  rightly  rejected  at  the  trial. 
This  case  closely  rcsemhles  the  one  now  before  us.     Indeed, 
the  only  distinction  is  that  the  objection  taken  to  the  evidence 
was  that  the  privilege  of  solicitors  extended  oidy  to  communi- 
cations made  in  the  ])rogress  of  a  cause.     The  court,  accord- 
ingly, do  not  seem  to  have  had  before  them  the  ccmsiderations 
to  which  we  have  addressed  ourselves.     If  the  case  cannot  be 
supported  on  this  ground,  we  differ  from  it,  as  it  seems  to  us  to 
be  opposed,  not  only  to  all  principle,  but  to  the  series  of  author- 
ities which  we  have  already  referred  to.     It  is  I'ight  to  say  that 
Cmnavk  v.  Jlmf/uvfe,  2  B.  &.  B.,  4,  is  ap])roved  of  in   Green- 
ough  V.  Gash'll,  1  My.  tfe  K.,  98,  and  in  other  cases,  but  it  is 
cited  only  as  a  general  statement  of  the  doctrine  of  privilege, 
and  the  })articular  point  now  under  consideration  is  not  dis- 
cussed or  mentioned.     The  point  for  which  it  is  cited  is,  that  it 


Hi 


f  i 


I 


^ 

!3 


Id. 


■IflF 


|0'> 


AJIERICAN  CRIMINAL  REPORTS. 


(lecitles  that  privilege  is  not  confined  to  communicutioiis  madp 
in  the  course  of  a  suit.  The  next  case  is  Hex  v.  Smifh^  l  l'i,ij. 
lips  tfc  Arnold  on  Evidence,  US,  A.  D.  1822.  In  tliis  case  IIol. 
royd,  J.,  refused  to  compel  an  attorney  to  produce  a  foroed 
promissory  note  which  the  prisoner  had  given  to  him  in  order 
to  sue  u])on  it.  It  Inid  been  ))roduced  before  the  uiugistratcs, 
and  returned  to  the  attorney  at  his  request,  as  ho  said  he  had 
a  lien  on  it.  "We  do  not  agree  with  this  decision.  It  was  said 
not  to  be  law  by  Patteson,  J.,  in  Reg.  v.  A vtry,  S  0.  A:  P., utm, 
A.  D.  1 S3S.  though  some  years  afterwards  he  said  that  "  the 
oi)servations  he  was  reported  to  have  made  about  it  scein  too 
strong."  L\'<j.  v.  Tup,  1  Den.  C.  C,  324.  The  tuxt  i)nmn%^ 
of  Doe  V.  l/f/rris,  5  C.  &  P.,  502,  decided  in  1833  by  Justice, 
afterwards  JJaron.  Parke,  was  precisely  similar  to  Ci'oni'w];  t 
ILntJu'ote.  2  13.  vfe  E.,  4,  and  was  decided  exi)ressly  on  the  au- 
thority of  that  case.  The  case  of  Knight  v.  Tunjujonl,  -1  M.i- 
W.,  101,  A.  J).  183(5,  was  also  mentioned  to  us.  It  is  eiiougli 
to  say  of  it  that  it  was  not  a  case  of  fraud  or  crime. 

The  next  case  is  lug.  i\  ILiiprai'il  ami  ot/urx,  2  C.  &  K., 
234-.  A.  D.  1S4(!.  In  that  case  Pollock,  C.  15.,  admitted  a  forged 
will  which  the  prisoners  l)y  a,  trick  had  got  into  the  i)ossessioii 
of  the  attorney  who  produced  it,  hoping  that  he  might  acton 
it,  as  ho  did.  Tiie  judges  held  that  this  will  was  rightly  ad- 
mitted, there  having  been  no  ])rofessional  conlidciice,  "  even  if 
that  would  have  made  any  diirerence."  This  case  is  an  author- 
ity in  favor  of  the  view  tak'on  by  us.  There  can  in  reason  i)e 
no  distinction  between  getting  a  will  into  a  solicitor's  posses 
sion  by  fraudulently  putting  it  amongst  other  tlocuments.  and 
getting  his  advice  by  telling  a  lie  as  to  the  object  for  which  it 
is  asked.  The  last  case  to  be  mentioned  is  /Ay/,  v.  Tiijf's,  1  Den., 
311),  325,  A.  1).  1S4S.  IS  L.  J.  (X.  S.)  (M.  C),  30.  In  this  case 
the  indictment  was  for  forging  a  will.  It  had  been  jjut  into 
the  hands  of  an  attorney  in  order  to  be  put  in  force,  aiultho 
question  was  wJiether  he  coukl  ))roduce  it  in  evidence.  The 
evidence  was  admitted,  and  on  the  pri.soner's  conviction  a  case 
was  reserved  for  the  fifteen  judges.  They  recommended  a 
pardon  on  another  point,  and  gave  no  opinion  as  to  the  admis- 
sibility of  the  evidence.  From  the  observations  made  (liirinj: 
the  argument  by  different  learned  judges,  as  reported  in  the 


Ia\v  Journal 
opinion  on  t 
pp.  37,  38. 

From  this 
v,-e  differ  fro 
and  from  tw 
stren''tli  of  ( 
of  greater  a 
le,;:al  princip 
have  one  ot 
with  the  arg 
any  such  ex( 
is  not  to  ext( 
criminal  or  fi 
of  that  ]iriv 
lated  in  orde 
be  tohl  in  c 
Avcre  earnest 
in  which  tlii^ 
which  we  fe 
each  particu 
actually  give 
whether  it  sc 
consulted  hi; 
crime  for  tlu 
the  commissi 
helped  in  con 
tion.  wliethe 
will  always  1 
Courts  nuist 
special  facts 
whetlier  a  w 
that  he  is  ho 
the  iunnedia 
fact  that  till 
the  trial  of 
been  dissolv 
iter  was  con; 
a  bill  of  sale 
fendaiit  to  tj 
Vol.  \ 


THE  QUEEN  v.  COX  AND  RAILTON. 


Law  Journal,  it  would  seem  that  there  was  some  difference  of 
oi)inion  on  the  subject.     Sec  licrj.  v.  Tijlnoj,  IS  L.  J.  (]\[.  C), 

])|).   .11,   -'O. 

From  this  examination  of  the  authorities  it  will  be  seen  that 
vre  differ  from  one  decision  of  the  full  court  of  common  pleas, 
and  from  two  decisions  at  nisi  prim,  but  Ave  do  so  on  the 
strcno'tii  of  other  decisions  which  appear  to  us  not  only  to  be 
of  o-rciiter  authoritv%  but  also  to  be  more  in  accordance  with 
Ic^^al  principles  as  well  as  with  justice  and  expediency.  "We 
liiivc  one  other  matter  to  notice.  We  were  jL^reatly  pressed 
with  tlio  arg'inncnt  that,  speaking  practically,  the  admission  of 
anv  such  exception  to  the  privilege  of  legal  advisers  as  that  it 
is  not  to  extend  to  communications  made  in  furtherance  of  any 
criminal  or  fraudulent  purpose  would  greatly  diminish  the  value 
of  that  privilege.  The  privilege  must,  it  was  argued,  be  vio- 
lated in  order  to  ascertain  whether  it  exists.  The  seci'et  must 
1)C  told  in  order  to  see  whether  it  ought  to  be  kept.  AVo 
were  earnestly  i)ressed  to  lay  down  some  rule  as  to  the  manner 
in  which  this  consequence  should  be  avoided.  The  only  thing 
which  we  feel  authorized  to  say  upon  this  matter  is,  that  in 
each  particular  case  the  court  must  determine  upon  the  facts 
actually  given  in  evidence  or  proposed  to  be  given  in  evidence 
whether  it  seems  probable  that  the  accusetl  person  niay  have 
consulted  his  legal  adviser,  not  after  the  commission  of  the 
crime  for  the  legitimate  purpose  of  l)eing  defended,  l)ut  before 
the  commission  of  tlie  crime  for  the  puri>ose  of  being  guided  or 
helped  in  committing  it.  We  are  far  from  saying  that  the  ques- 
tion, whether  the  advice  was  taken  before  or  after  the  offense, 
will  always  be  decisive  as  to  the  admissibility  of  such  evidence. 
Courts  must  in  every  instance  judge  for  themselves  on  the 
special  facts  of  each  particular  ease,  just  as  they  must  judge 
whetlier  a  witness  deserves  to  be  examined  on  the  supposition 
that  he  is  hostile,  or  whether  a  dying  declaration  was  made  in 
the  innnediate  pi'ospect  of  death.  In  this  i)articular  case  the 
fact  tliat  there;  had  been  a  partnership  (which  was  ])roved  on 
tiie  trial  of  the  inter{)leader  issue\  the  assertion  that  it  had 
been  dissolved,  the  fact  that  directly  after  the  verdict  a  solic- 
itor was  consulted,  and  that  the  execution  creditor  vas  met  by 
a  bill  of  sale  which  purported  to  liave  been  made  by  the  de- 
fendant to  the  man  who  had  been  and  was  said  to  have  ceased 
Vol.  V  — li 


w  i-i 


1(^2 


AMERICAN  C;RIMINAL  REPORTS. 


to  be  his  partner,  made  it  probable  that  the  visit  to  tlio  solic- 
itor really  was  intended  for  the  purpose  for  which,  after  ho  had 
given  his  evidence,  it  turned  out  to  have  been  intended.  If 
the  interview  had  been  for  an  innocent  purpose,  the  evidence 
given  would  have  done  the  defendants  good  instead  of  hann, 
Of  course  the  power  in  question  ought  to  be  used  with  the 
greatest  care  not  to  hamper  prisoners  in  making  their  defense. 
and  not  to  enable  unscrupulous  pei'sons  to  acquire  knowledfe 
to  which  they  have  no  right,  and  every  ])recaution  should  be 
taken  against  compelUng  unnecessary  disclosures. 

Conviction  affirmed. 


State  v.  Lawrence. 

(12  Oregon,  297.) 

Constitutional  law:  Grand  jury  —  Indictment. 

1.  The  act  of  the  legislature  of  Oregon  providing  that  the  sherifT  and  clerk 

shall  draw  from  the  body  of  jurors  a  grand  Jury  several  days  prior  to 
the  term  of  court  is  in  conflict  with  section  18  of  article  7  of  the  con- 
stitution, and  void. 

2.  An  indictment  found  by  a  grand  jury  organized  under  an  unconstitu- 

tional law  should  be  quashed,  and  a  judgment  of  conviction  foumld 
thereon  reversed. 

Multnomah  county.    Defendant  appeals.     Reversed. 

James  K.  Kelly,  for  appellant. 

John  M.  Gcarhi,  district  attorney,  for  respondent. 

Lord,  J.  By  the  late  act  of  the  legislature  it  is  provided,  in 
substance,  that  the  sheriff  and  clerk  shall  draw  from  the  body 
of  jurors  a  grand  jury  several  days  prior  to  the  term  of  court. 

The  question  ])resented  i.s,  does  the  act  conflict  with  s(>ction 
18  ol  article  VII  of  the  constitution,  which  provides  tliut  "the 
legislative  assembly  shall  so  provide  that  the  most  competent 
of  the  permanent  citizens  of  the  county  shall  be  chosen  for 
jurors,  and  out  of  the  whole  number  in  attendance  at  court 
seven  shall  be  chosen  by  lot  as  grand  jurors,  five  of  whom 
must  concur  to  find  an  indictment;  but  the  legislative  assembly 


may  modify  c 
selects  the  gr, 
the  court,"  it 
cited,  unless  i 
clause-  " 
ity  to  the  .ic 
,  .  .  gran( 
to  change  or 
something  in 
taken  in  thei 
given  to  modi 
matter  to  lien 
it  does  not  do 
cation  in  form 
ot  the  subjec 
mode  of  creai 
bring  into  exi 
some  pavticid 
Fortheexiste 
it  must  be  cIk 
ance  at  the  c( 
islature  may  i 
to  abolish,  it 
include  the  ]» 
may  bf>  aboli 
that  its  exist 
subject-inatte: 
It  is  grind 
relates,  and  ti 
and  not  to  tl 
constitution  1 
tem,  and  not 
'  Avho  coni]wse 
may  modify  i 
powers,  dntie 
ing  prescribe 
jurors  in  atte 
and  limit  the 
assembly,"  sa 
from  the  by-i 


STATE  i".  LAWRENCE. 


163 


in 


Tiiav  modify  or  abolish  grand  juries?"  As  the  act  necessarily 
selects  the  grand  jury,  not  frcMii  the  "  jurors  in  attendance  at 
the  court,"  it  is  admitted  to  be  in  conflict  with  the  provision 
cited  unless  tlx'  power  vested  in  the  legislature  by  the  latter 
clause-    "'  ..dil'yor  abolish  grand  juries" — gives  valid- 

ity to  llii  "^t.  What  is  meant  by  the  words  "may  modify 
grand  juries'!'"  In  a  general  sense,  to  modify  means 
to  change  or  vorv,—  to  qualify  or  reduce:  and  unless  thtre  is 
something  in  the  com  xi,  or  special  usage,  the  words  are  to  be 
taken  in  their  jilain,  ordinary  and  popular  sense.  A  power 
given  to  modify  or  abolish  im])lies  the  existence  of  the  subject- 
matter  to  he  modified,  or  abolished.  When  exercised  to  modify, 
it  does  not  destroy  idi'i.tity,  but  effects  some  change  or  qualifi- 
cation in  form  or  qualities,  ])owers  or  duties,  pur[)oses  or  objects, 
ot  the  subject-matter  to  be  modilied,  without  touching  the 
mode  of  creation.  The  word  implies  no  power  to  create  or  to 
bi'in"-  into  existence,  but  only  the  power  to  change  or  vary  in 
some  part  it  uliir  an  already  created  or  legally  existing  thing. 
For  the  existence  of  a  grand  jury  tlw3  constitution  has  provided : 
it  must  be  chosen  from  the  whole  number  of  jurors  in  attend- 
ance at  tlie  court.  It  is  this  bod}^  as  thus  constituted,  the  leg- 
islature may  modify  or  abolish.  If  the  power  is  not  put  forth 
to  abolish,  it  may  be  exercised  to  modify  it;  but  this  cannot 
include  tlu;  jtowei'  to  ci-eato  or  destro}'  it.  Tlie  fact  that  it 
may  ho  abolished  or  modilied  proceeds  from  the  assumption 
that  its  existence  is  already  provided  for,  and  furnishes  the 
subject-matter  u|)on  which  the  legislative  act  is  to  operate. 

It  is  grund  juries  to  which  the  word  "  modify,"  in  the  section, 
relates,  and  to  which  the  ])ower  it  embodies  must  be  applied, 
and  not  to  the  mode  of  selecting  grand  jurors,  for  which  the 
constitution  has  ])rovided;  or,  ])erhaps,  to  the  grand  jury  sys- 
tem, and  not  to  the  mode  of  selecting  individual  grand  jurors 
'  who  coni]inso  the  grand  jury.  These  or  this  the  legislature 
may  modify  in  various  ways,  by  limiting  or  regulating  their 
powers,  duties,  qualilications,  etc.  The  constitution,  then,  hav- 
ing prescribed  th.'it  the  grand  jury  sliall  be  chosen  from  the 
jurors  in  attendance  at  the  court,  it  would  seem  to  be  exclusive, 
and  limit  the  legislative  power  in  this  regard.  "Our  act  of 
assembly,"  said  (Jibson,  (-.  J.,  "requires  talesmen  to  be  taken 
from  the  bystanders ;  and  in  this  respect  it  is  more  explicit 


I! 

1; 


101 


AMERICAN  CRIMINAL  REPORTS. 


than  tlic  English  statute,  Avhich  directs  them  to  be  taken  from 
the  iKvmns  attending  at  the  ((-inhcs.  Yet  the  construction  of 
one  and  the  otlier  has  never  been  so  hberal  as  to  inchide  anv 
but  those  actually  present."  Sunoti  v.  Gnitz,  2  Pen.  ct  V„ 
417. 

In  llandaU  v.  State,  10  Wis.,  r,4(i,  the  court  says:  " It  would 
be  absurd  to  say  that  a  nienil)er  was  in  atteiulance  uprm  tlio 
general  assembly  Avhon  it  was  not  convened."  The  act  of  tlic 
legislature  prescribing  that  the  grand  jury  shall  Ijc  drawn  from 
jurors  other  than  those  in  attendance  at  court  is  in  conflict 
Avith  the  provision  of  the  constitution  cited,  and  must  yield  to 
the  paramount  law.     It  is  therefore  void. 

The  next  incpiiry  is  whether  the  eU'ect  of  this  is  to  entitle 
the  defendant  to  have  the  indictment  (juashed  and  tlio  jiul"- 
ment  of  conviction  reversed.  Although  this  (juestion  was  not 
argued,  it  was  evidently  assumed  as  a  conseciuence  of  the  do 
clared  invalidity  of  the  law.  The  press  of  other  business,  and 
the  necessity  of  an  early  decision  of  this  matter  on  account  of 
ti'e  public  exigency,  has  denied  us  that  opportunity  for  an  in- 
vestigation and  consideration  of  this  phase  of  the  question 
Avhich  is  desirable  and  necessary  for  a  satisfactoi-y  sidution. 
The  proceeding  here  is  direct  and  not  collateral.  The  defend- 
ant was  indicted  by  a  grand  jury  chosen  under  a  void  luw.  to 
which  he  regularly  excepted,  and,  as  a  conseciuenco  tJiereof, 
claims  that  the  accusatory  i)aper  found  against  him  by  such  ii 
body  of  men  is  not  an  indictment,  ami  that  the  judgment  of  con- 
viction found  u|)on  it  cannot  be  sustained.  In  People  r.  Pcim, 
92  N.  Y.,  13.5,  the  defendant  was  indicted  by  a  grand  jury 
selected  under  a  void  law.  At  the  trial  he  filed  a  ])'ea  alleginjr 
the  act  U)  be  unconstitutional  on  the  ground  that  it  vasa  local 
act.  The  court  declared  the  act  to  be  void,  but  held  that  the 
ol)jection  to  it  was  properly  overruled  in  the  court  below,  as  it 
involved  no  constitutional  right.     The  court  say; 

"  We  are  of  the  opinion  that  no  constitutional  right  of  the 
defendant  was  invaded  by  holding  him  to  answer  to  the  imlict- 
ment.  The  grand  jury,  although  not  selected  in  pursuance  of 
a  valid  law,  were  selected  under  color  of  law  and  semblance  of 
legal  authority.  The  defendant,  in  fact,  enjoyed  all  the  pro- 
tection which  he  would  have  had  if  the  jurors  had  been  selected 
and  drawn  pursuant  to  the  General  Statutes.     Nothing  could 


well  be  mor( 
the  defendai 
entitled  to  li 
being  put  on 
drawn,  sunui 
tent  court,  ai 
think,  fulfilk 
found  the  in 
izcd  under  tli 
owing  to  th 
stantial  right 
this  point  t( 
an  indictnicn 
and  drawn  a 
hy  the  court 
by  a  gi-aiul  j 
the  law  un(l( 

Hut  it  is  U. 
not,  as  the  c( 
chosen  from 
whole  niattei 
to  the  disc  ret 
vation.  Tlie 
mode  of  sek'< 
teni  is  pei'uiit 
tutional  riglii 
that  the  ind 
t>nlyasprovi( 
there  is  a  wa 
posed  hy  the 
what  was  pre 
nuist  Ije  done 
It  was  hecaui 
or  privilege  c 
in  that  case, 
it  does  invad 
plical)le. 

There  are, 
when  a  gran 
selection  is  n 


STATE  V.  L.UVRENCE. 


1C5 


well  be  more  unsubstantial  than  the  alleged  right  assorted  by 
the  defendant,  under  the  circumstances  of  the  case.  lie  was 
entitled  to  have  an  indictment  found  by  a  grand  jury  before 
beiiK'  put  on  his  trial.  An  indictment  was  found  by  a  body 
drawn,  summoned,  and  sworn  as  a  grand  jury  before  a  compe- 
tent court,  and  composed  of  good  and  lawful  men.  This,  we 
think,  fulfilled  the  constitutional  guaranty.  The  jury  which 
found  the  indictment  was  a  de  facto  jury,  selected  and  organ- 
ized under  the  forms  of  law.  The  defect  in  its  constitution, 
owing  to  the  invalidity  of  the  law  of  ISSl,  affected  no  sub- 
stantial right  of  the  defendant.  AVe  confine  our  decision  on 
this  point  to  the  case  i)rcsented  by  the  record,  and  hold  that 
an  indictment  found  by  a  jury  of  good  and  lawful  men,  selected 
and  (h'awn  as  a  grand  jury  under  color  of  law,  and  recognized 
by  the  court,  and  sworn  as  a  grand  jur}',  is  a  gocid  indictment 
by  a  grand  jury,  within  the  sense  of  the  constitution,  although 
the  law  under  which  the  selection  was  made  is  void.'' 

But  it  is  to  be  noted  that  the  constitution  of  New  York  does 
not,  as  the  constitution  of  Oregon,  require  the  grand  jury  to  be 
chosen  from  the  jurors  in  attendance  at  the  court,  but  the 
whole  matter  of  selecting  a  grand  jury  is  left  almost  entirely 
to  tile  discretion  of  the  legislature,  without  limitation  or  reser- 
vation. Tlie  court  say,  "the  constitution  does  not  define  the 
mode  of  selection."  AVith  us,  so  long  as  the  grand  jury  sys- 
tem is  pei-mitted  to  remain, —  not  abolished, —  it  is  the  consti- 
tutional right  of  a  defendant  accused  of  a  crime  to  demand 
that  the  indictment  shall  be  found  l»y  a  grand  jury  selected 
only  as  [n'ovided  in  the  constitution.  The  difference  is  that  here 
there  is  a  want  of  power  in  the  legislature  to  do  what  was  pro- 
posed by  the  act;  but  there  it  was  not  a  want  of  power  to  do 
what  was  proposed  by  the  act  oidy  to  make  it  constitutional;  it 
nuist  be  done  l)y  a  gene  -al,  and  not  by  a  i)rivate  or  local  law. 
It  was  because  the  act  did  not  invade  anv  constitutional  right 
or  privilege  of  the  defendant  in  the  selection  of  grand  juries 
in  that  case,  to  which  the  result  is  attributable;  it  is  because 
It  doos  invade  such  right  in  this  case  that  the  decision  is  inap- 
plicable. 

There  are,  however,  numerous  authorities  to  the  effect  that 
when  a  grand  jury  is  not  selected  as  reipiired  by  law,  or  a 
selection  is  made  of  such  persons  as  are  not  (jualilied  to  act  as 


16G 


AMERICAN  CRIMINAL  REPORTS. 


grand  jurors,  an  indictment  found  by  them  is  null  and  void, 
and  should  be  quashed,  and  the  prisoner  indicted  de  lum. 
Finleij  V.  State,  Gl  AUi.,  201;  Couch  v.  State,  G3  Ala.,  IGS;  CUm 
V.  State,  30  Md.,  1G5;  WUhuni  v.  State,  21  Ark.,  201;  117*//,. 
head  v.  Com..,  19  Grat.,  GIO;  MeQuilleii  v.  State,  8  Sincdes  i 
M.,  587;  Siaf''  v.  Williams,  5  Port.,  130;  JJutell  v.  State,  i 
Greene,  125;  Doi/le  v.  State,  17  Ohio,  222;  Fitzyemhl  v.  Slate, 
4  Wis.,  398. 
In  State  v.  Si/mojuls,  3G  Me.,  132,  the  court  say: 
"  These  persons  were  sworn  and  charged  as  grand  jurors,  and 
added  to  the  j)anel,  and  acted  in  finding  this  bill.  But  as  their 
selection  for  this  purpose  was  not  in  conformity  to  the  laws  of 
this  state,  they  constituted  no  part  of  a  legal  grand  jiin-, 
Consequently  the  indictment  could  not  have  been  found  bv  at 
least  twelve  lawful  jurors,  and  is  void  and  eri'oneous  at  com- 
juou  law;  and  in  the  spirit  and  language  of  an  act  ot  parlia- 
ment— 11  Jlen.,  X.  C,  9  —  should  be  "revoked  and  forever 
holden  for  naught.'"  2  Hale,  P.  C,  155;  -l  JJl.  Conmi.,  30i; 
C<*//>.  V.  Smith,  9  Mass.,  107;  Loto't^  Ca.se,  i  ]\[e.,  ■A;>9. 

Upon  tlio  whole,  it  is  our  judgment  that  the  accusatory 
paper  was  not  an  indictnuint;  that  it  proceeded  from  and  was 
tlie  act  of  a  body  of  men  selected  as  a  grand  jury  in  violatiuii 
of  the  constitution.  It  follows,  therefore,  that  the  juil,<'iueiit 
of  conviction  must  l.>e  reversed,  and  the  cause  be  renianiUnl  for 
such  further  proceedings  in  conformity  with  this  opinion  and 
the  law  as  may  be  required. 


Statk  v.  IjOSWKI-L. 
(104  Ind.,  541.) 
Constitutional  l\w:  Faibireof  grand  jury  to  iixlict  — Ih/ornidtm. 

1.  United  States  constitution.— Tlio  provisions  of  tho  fodcial  constiiii- 

tioii  do  not  ai)i)ly  to  criininiil  prosecutions  under  stato  laws,  exu'H 
whim  the  states  are  named. 

2.  Puosecution    by    information.— Tlie  fourteenth  ameiidinent  to  tli" 

federal  constitution  api)lies  to  the  states;  hut,  wlicre  tin'  loiistlttilmN 
of  a  state  ))ro.iiles  for  the  |)rosecution  of  felonies  iiy  iiifurm;iti"i' 
l)V()si;eution  hy  infonuation  is  not  in  violation  of  the  provisi.nsof  tlial 
amondmeut. 


a 


3.  When  or. 

be  filed  a 
of  court 
had  been 

4.  Statutes  ! 

of  law. 

Appeal  f  r 

E  a  Va 

Watl-ins  am 

/.  B.  Ken 

Elliott,  J 
can  the  sta 
person  accut 
dictmcnt  ?    . 
sel  that  the 
the  present  1 
apply  to  prd 
prosecutions 
good.    The 
ion,  have  lot 
tion  do  not  i 
by  clear  im 
point  is  sett 
(fc,  7  Pel., 
1  AVall.,  ;!l> 
Ell  lot  t,  21  A 

the  states  ;ii 
caldc  to  the 
is  otherwist 
••>'(/'//'/,  1(17  r 

'■n  i'.I),rnj 
|)0O|ll(>  nf    1 1 

the  I'nited 
onics,  for  il 
jury  system 
early  at  h': Is 
n')t  govern  i 


.^1 


STATE  V.  BOSWELL. 


1G7 


3  When  grand  jury  fail  to  indict. —  An  information  cannot  properly 
be  filed  against  a  defendant  so  as  to  compel  him  to  go  to  trial  at  a  term 
of  court  to  which  he  was  recognized  t<j  appear,  after  the  grand  jury 
had  been  discharged  without  finding  an  indictment  against  him. 

4.  Statutes  should  be  construed  as  parts  of  one  great  and  uniform  system 
of  law. 


Appeal  from  Huntington  Circuit  Court. 

E  0.  Vantj/utn,  prosecuting  attorne}'-,  B.  31.  Coll,  C.  W. 
Watliins  and  -/.  G.  Ilufk,  for  the  state. 
./.  B.  Kt'iuur,  J.  J.  Dille  and  D.  l^irple,  for  appellee. 


Em.iott,  J.  The  first  question  which  the  record  presents  is, 
can  the  state  in  any  case  proceed  by  information  against  a 
pei'son  accused  of  a  felony,  or  must  the  proceeding  be  by  in- 
dictment? It  is  assumed  in  tho  argument  of  api)elice's  coun- 
sel tliat  the  provisions  of  the  federal  constitution  respecting 
tlic  prosoiitinciit  of  charges  of  felony  and  tlie  mode  of  trial 
apply  to  ])rosocutioiis  under  the  laws  of  tlie  state,  and  prohibit 
prosecutions  by  infornintion.  Tiiis  assumption  cannot  be  made 
good.  Tlie  federal  and  state  courts,  without  diversity  of  opin- 
ion, have  long  held  that  the  provisions  of  the  federal  constitu- 
tion do  not  apply  to  the  states,  unless  the  states  are  referred  to 
by  clear  implication  or  express  words.  The  law  upon  this 
point  is  settled  and  has  long  been  settled.  Ihiri'on,  v.  M<njor, 
do.,  7  Pet.,  2b'!;  Fox  v.  Stdt,',  5  How.,  410;  Ttoltchell  v.  Com., 
(  AVall.,  :!lM;  P.<(rsi»}  r.  Vrtrih/f,  1)5  U.  S.,  294:;  luhoards  v. 
F/lwff,  21  AVall..  .'..".2;  JMv,'  v.  Cordon,  2:5  Ind.,204:;  Jititkrv. 
Si,(h','d7  Ind.,  ;;TS;  Cooley,  Const*.  T.im.  i^.Mh  ed.),  2»'..  AVhere 
the  states  ai'c  named,  the  provisions  thus  directly  made  appli- 
cable to  tliciii  control  in  state  as  well  as  national  ali'airs;  but  it 
is  otherwise  where  the  states  are  n^ot  named.     Krhi;/  v.  Jft's- 

.v'/'//v',  lor  r.  s., 221 :  y; ////.. v,v,v  •«.  AnvX  kki  r.  s.,  257;  comp- 

''!/  r.  DiCH/t/i/hs,  s:]  Ind.,  ■t7;>-4Sl.  It  is  (piite  clear  that  the 
peo]ile  of  li>(li;iii;i  did  not  un(hM\staiul  that  the  eoiislitution  of 
the  I'liitcd  States  governed  prosecutions  by  the  state  for  fel- 
onies, for  they  provided  in  their  constitution  that  the  grand 
jury  system  might  be  modified  or  abolished,  and  our  court,  as 
curly  at  least  as  l>o7,  declared  tliat  the  federal  constitution  did 
nit  govern  the  states  except  in  those  instances  where  they  were 


im 


AMERICAN  CRIMINAI.  REPORTS. 


named.     Ldh  Erie,  etc,  R.  12.  Co.  v.  IRath,  9  Ind.,  .^58  sec 
])jige  550. 

The  fourteenth  amend meiit  to  the  United  States  constitution 
does  name  the  states,  and  its  provisions  arc  therefcjre  apnljca. 
ble  to  them.  Kr'iiuj  v.  Jfismu/'i,  tii(j)nt;  Tcn/u'.s,ieo  v.  Jjacl^, 
supra.  That  amendment  does  prohibit  the  states  from  dopriv- 
ino-  "any  person  of  Hfe,  liberty  or  property  without  (Uie  piMcess 
of  law,"  but  it  does  not  ])rohibit  the  states  from  proceo(niii>' in 
felony  cases  by  information  when  that  jtrocedure  is  autliurizod 
by  the  state  constitution.  This  question  has  recently  b(<en  dis- 
cussed by  the  supreme  court  of  the  T'nited  States,  and  needs 
no  further  discussion  from  us.  llni'tado  v.  CdUfni'nld,  \h)\'. 
S.,  510;  Kallock  v.  Sxj'erloi'  Court,  50  Cal.,  2-".);  /\oi,k  r. 
Hurtado,  <t3  Cal.,  2SS;  Ii'moa/i  v.  Sfittt\  :]()  AVis.,  1l>!»;  State. 
Jj((r/utt,  3  Kan.,  250.  There  are  many  cases  declarini^'  a  gen- 
eral princii)le  which  f^ives  full  and  sure  support  to  the  con- 
clusion reached  by  the  courts  in  the  cases  cited.  J/k/ih  -•, 
J//l/wis,Qi  U.  S.,  113;  WaUrr  v.  Sain'awt,  92  U.  S.,  '.I(»:  Juh- 
nard  c.  LdhIhUdih,  1»2  U.S.,  480;  Dmuilsait  r.  X<in  <)rl<:itn-%% 
U.  S.,  97;  J/issotiri  v.  Lcioia,  101  U.  S.,  22;  Lo'iii  As.in  v. 
2o2)c'hi,  20  Wall.,  055;  JJrown,  v.  Uoanl  of  JAi'ce  Cw/z/'/y,  yn 
Miss.,  408. 

It  seems  clear  to  us  that  one  who  is  tried  and  convicted  upon 
an  information  provided  for  by  a  constitutional  state  statute  is 
not  deprived  of  his  liberty  without  due  |)r()C(ss  of  law,  fur  wo 
perceive  no  reason  for  doubtin<^  the  soundiu'ss  of  the  propoii- 
tion  that  proceedings  founded  upon  an  infoi-matiun  provided 
for  by  a  legally  enacted  statute  do  constitute  due  proeessof 
law.  Our  own  decisions  have  repeatedly  sustained  the  validitv 
of  proceedings  founded  upon  informations,  and  tlusy  tlicivfor.' 
alHrm  the  jjrinciple  which  supports  the  pro[)<)sitioii  to  wliicli 
we  here  declare  our  assent. 

The  remaining  (juestions  in  the  ca.se  arise  u\)on  the  ruling  of 
the  court  on  a  demurrer  addressed  by  the  state  to  a  plea  in 
abatement  filed  by  the  defendant.  The  substance  of  tiio  plea 
is  this:  On  the  iSth  day  of  -luly,  1SS5,  an  atUdavit  was  Jiled 
charging  the  appellee  with  the  otfcjnse  of  as.sault  and  battery 
Avith  intent  to  kill.  On  this  charge  he  was  recognized  to  ap- 
pear at  the  ensuing  term  of  the  Huntington  circuit  cuui't. 
Tliat  term  of  court  convened  on  the  20th  day  of  October,  lJi^.■j, 


STATE  V.  BOSWELL. 


169 


and  on  that  day  tlie  grand  jury  Avere  impaneled,  and  remained 
in  session  one  week,  when  they  were  discharged  without  hav- 
ing rotuniod  an  indictment  against  the  appellee,  and  after  the 
(lischarce  of  tlie  grand  jury  the  prosecuting  attorney  filed  the 
infonnation  against  the  appellee  on  Avhich  this  prosecution  is 
founilod.  The  offense  charged  in  the  information  is  the  same 
as  tliat  npon  wliicli  the  appellee  Avas  recognized  to  appear  at 
the  circuit  court,  and  the  information  was  filed  during  the 
term  at  wliich  the  appellee's  recognizance  required  him  to 
ap])car. 

Till' conlrolling  (piestion  in  this  branch  of  the  case  is  this: 
Can  an  inl'onnatiun  bo  rightfully  lodged  jigainst  a  defendant 
at  a  term  of  court  to  which  he  was  recogni/.ed  to  appear,  but 
after  tlicgrjuid  jury  had  been  discliarged  witliout  linding  an 
indictnicnt  against  him?  A  written  accusation  made  by  a  com- 
petent olliccr  or  tribunal  must  be  preferred  against  one  brought 
to  trial  for  a  felony,  for,  witliout  sucli  an  accusation,  a  ])rosecu- 
tion  would  be  in  violation  of  the  federal  ami  state  constitu- 
tions, as,  in  tlu'  aljsence  of  such  an  accusation.  tluM'e  could  be 
no  duo  process  of  law.  It  is  not  enough  tliat  tliere  is  a  writ- 
ten accusiitiou,  but  it  must  also  be  one  jn-eferred  by  an  ollicer 
or  tribunal  authorized  by  law  to  ])refer  it.  A  citizen  may 
cause  t lie  arrest  of  an  accused  perscm  u])on  an  alHdavit,  but 
tlie  accused  cannot  be  put  to  final  trial  upon  a  ciiai'geof  felony 
on  such  an  atlidavit,  although  it  may  autlioi'i/,(?  a  preliminary 
examination  and  eMij)o\ver  acourt  toconipel  the  [K't'son  accused 
of  crime  to  cntcn'  into  a  recognizance.  Tlie  aiu.'ient  method  of 
accusing  ii  man  of  felony  was  by  an  indictuu'ut  fouml  by  a 
grand  jury, —  and  this  is  still  the  exclusive  method  in  many 
jurisdictions,  and  in  ours  is  the  usual,  but  iu)t  the  exclusive, 
method.  Wiiih'  the  procedui'o  by  indictment  is  the  oi'dinary 
one,  our  constitution  autliorizes  the  employnuMit  f>f  another 
method,  and  our  statute,  proceeding  u))oti  that  authoi'ity,  pro- 
vides lor  the  employment  of  the  nu'thod  of  prosecuting  by 
information,  but  the  latter  method  can  only  be  adopted  in  the 
cases  ])rovide(l  by  statute.  Indictment  is  yet  the  usual  method ; 
that  by  information  is  not. 

It  is  clear  from  our  statutes  and  our  decisions  that  prosecu- 
tions for  felony  nuist  be  by  indictment,  except  in  the  cases 
where  the  statute  expressly  provides  that  they  uuiy  be  by 


170 


AJIERICAN  CRIMINAL  REPORTS. 


information.  The  inquiry,  therefore,  in  all  cases  wliore  tlie 
right  to  ))rocee(i  l)y  information  is  properly  (|uostion(;(l,  must 
be:  Is  the  case  one  which  the  statute  authorizes  the  state  to 
prosecute  by  information  instead  of  by  indictment? 

Statutes  are  to  bo  construed  as  forming  part  of  one  great 
and  uniform  system  of  jurisprudence.    JIumphrliS  v.  Jhm^ 
100  Ind.,  274-2S4.     If  construction  proceeded  upon  any  other 
principle,  the  law  of  a  state  would  consist  of  disjointed  and 
inharmonious  ]mrts,  and  conflict  and  confusion  be  the  result. 
The  light  needed  for  the  just  interpretation  of  a  statute  is  not 
sup])lied  by  the  statute  itself,  but  comes  from  other  statutes 
and  from  the  ])rinci])les  declared  by  the  courts  of  the  land.  It 
would  be  as  illogical  as  mischievous  to  act  upon  a  single  stat- 
ute found  in  a  great  body  of  law,  irrespective  of  other  statutes 
and  other  laws,  and  against  such  a  course  the  faces  of  the 
courts  have  been  long  and  firmly  set.     A  court  that  should 
un<lertake  to  jiursuo  such  a  course  would,  to  borrow  something 
of  the  language  and  thought  of  ]\[r.  Bishop,  be  (pute  sin-e  "to 
stumble."     It  would  certainly  ''go  sounding  on  a  dim  and  per- 
ilous way,"     The  section  respecting  prosecutions  by  informa- 
tion found   in   our  Criminal   Code   must  be   construed  with 
reference  to  other  statutes,  and  esj)ecially  with  reference  to 
other  parts  of  that  code.     It  is  not  isolated  and  detached  pro- 
visions of  a  code  that  rule.     It  is  the  intention  of  the  legisla- 
ture, as  gathered  from  all  the  ])rovisions  of  the  code,  that 
governs  and  controls.     The  prosecution  of  ])ersons  accused  of 
felony  b}'^  indictment  has  not  only  long   been   the  method 
adopted  by  our  laws,  and  by  the  laws  of  the  countiy  from 
which  the  great  principles  of  our  jurisprudence  come,  hut  it  is 
a  method  closely  in  harmonv  with  the  spirit  of  our  institutions, 
for  that  spirit  is  that  in  the  administration  of  the  criminal  law 
the  people  shall  take  as  much  part  as  possible.     Hence  it  is 
that  grand  juries  are  ])rovided  for,  and  the  decision  of  (piestions 
of  law,  as  well  as  of  fact,  committed  to  our  traverse  juries. 
This  has  been  for  many  years  the  policy  of  our  law,  and  for 
centuries  it  has  been  a  linnly  settled  principle  (jf  the  common 
law.     Prosecution  by  information  is  in  derogation  of  the  com- 
mon law,  and  a  departure  from  the  general  ]iolicy  of  oiii'  laws, 
and  statutes  in  derogation  of  the  connnon  law  and  in  o[)posi- 
tion  to  a  long-settled  policy,  must  bo  strictly  construed. 


STATE  V.  BOSWELL. 


ITl 


ff 


In  a  note  to  United  States  v.  Brady,  3  Crim.  Law  Mag.,  GO-77, 
Mr.  AVliarton  makes  some  very  strong  objections  to  the  method 
of  prosecuting  felonies  by  information,  and  with  niuch  clear- 
ness delineates  the  policy  of  the  law  ui)on  the  subject  of  prose- 
cutions for  crime.     We  quote  his  concluding  remarks: 

"The  ordeal  of  a  grand  jury  is  a  proper  one  in  all  cases  of 
serious  crime.  It  is  a  terrible  thing  for  a  man  to  be  put  on 
trial  for  an  olTense  involving  ignominy  and  coiitingent  heavy 
punishment.  The  expense  is  heavy.  The  mere  fact  of  being 
put  on  trial  is  a  great  discredit.  There  is  always  a  risk  of  an 
unjust  conviction.  Under  these  circumstances  the  ]n'otoctioa 
afforded  by  a  grand  jury  is  just  as  well  as  politic." 

Tlio  courts,  to  bo  sure,  have  nothing  to  do  with  questions  of 
leo'islative  policy,  but  it  is,  nevertheless,  their  dut\'  to  look  to 
the  general  policy  of  the  government  in  construing  statutes, 
and  here  we  receive  light  fi'om  this  source,  as  Avell  as  from  the 
princii)les  of  the  law  and  other  statutes.  It  cannot  be  justly 
hold,  in  view  of  tlie  policy  of  our  government,  the  principles 
of  our  laws,  and  the  general  provisions  of  our  Code  of  Criminal 
Laws,  that  the  legislature  meant  to  authorize  a  prosecution  by 
information  in  a  case  where  an  accused  had  l)een  recognized  to 
appear  at  the  term  of  court  following  the  commission  of  the 
offense,  and  where  the  grand  jury,  sitting  at  that  term,  had 
failed  to  iind  an  indictment  against  him.  To  hold  otherwise 
would  be,  in  eU'ect,  to  i)ermit  the  prosecutor  to  sit  in  judgment 
on  the  proceedings  of  the  grand  jury,  to  substitute  his  o[)iniou 
for  theirs,  and  to  make  his  will  the  sole  arbiter  of  the  question 
whether  a  man  whom  the  grand  jury  had  failed  to  indict 
should  or  should  not  bo  forced  to  final  trial.  AV^e  do  not  be- 
lieve that  the  legislature  intended  that  this  should  occur;  nor 
do  we  believe  that  the}''  intended  that  prosecutions  by  infor- 
mation should  su|)})lant  prosecutions  by  indictment,  except  in 
l)articular  instances.  The  provisions  made  by  statute,  author- 
izing prosecutions  by  information,  were  intended  to  secure 
speedy  trials,  and  jjrevcnt  delays,  by  enabling  the  prosecuting 
attorney  to  jjresent  charges  upon  which  the  grand  jury  had  no 
opportunity  to  act;  but  the}'  were  not  intended  to  ])ermit  the 
prosecuting  attorney  to  proceed  by  information  where  there  was 
ample  opportunity  to  proceed  by  indictment.  AVhere  there  is 
an  ojjportunity  to  present  an  accusation  to  the  grand  jury,  the 


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prosecutor  cannot,  upon  the  fcailure  of  that  body  to  return  an 
indictment,  proceed  against  the  accused  by  information.  If 
we  were  to  adopt  the  theory  of  the  state,  it  would  result  in 
leaving  to  the  almost  unrestrained  discretion  of  the  ])rosocut- 
ing  attorney  the  method  of  ])rosecuting  felonies,  other  than 
murder  or  treason,  and  in  confining  the  procedure  by  indict- 
ment to  a  very  small  class  of  cases.  This  result  it  was  not  tlio 
intention  of  the  legislature  to  produce. 

The  failure  of  the  grand  jury  to  fiml  an  indictuu'ut  docs  not. 
of  course,  work  an  acquittal  of  an  accused,  nor  doo",  it  prevent 
his  arrest  upon  an  affidavit  iiuide  by  an\'  person  conijjetcnt  to 
make  an  ordinary  affidavit,  nor  does  it  ])revent  a  pi'climinary 
examination  from  being  hold  the  second  time,  and  an  order 
entered  jilacing  him  under  recognizance;  but  it  does  prevcnr 
the  ]irosecnting  attorney  from  driving  him  to  iinal  trial  upon 
an  information. 

Judijincnt  a^nned. 


Statu  v.  Gleasox. 

(;i2  Kan.,  245.) 

Constitutional  law:  Inforination. 


Warrant  of  arrest  on  affidavit  — Bill  of  rights.  — 8pctionir)of  tlio 
bill  of  rights,  in  the  eonstiliitioii  of  this  stato,  dt'clairs  that  no  war- 
rant shall  1)L'  issued  to  si'izf  any  person  (.xct'iit  on  iirobal>k>  cause,  sup- 
ported by  oath  or  aflirniation.  Hence  a  complaint  or  information  died 
in  the  district  court,  chargin;;  a  defendant  with  a  misdemeanor,  and 
verified  on  nothiuf;  hut  hearsay  and  helief,  is  not  suffiricnt  toauthori/e 
the  issuance  of  a  warrant  for  the  arrest  of  the  jjerson  therein  char^^ed, 
when  neither  a  preliminary  examination  nor  a  waiver  of  the  right  to 
such  examination  has  been  had. 

Appeal  from  Allen  District  Court. 

G.  A.  AitwK,  county  attorney,  for  the  state. 
G.  P.  Siu'dlt,  for  appellant. 

IIoRTON,  C.  J.  This  was  a  prosecution  for  the  violation  of 
suction  7,  ch.  128,  Laws  ISSI,  commonly  known  as  the  proliil)- 
itory  liquor  law.    The  county  attorney  commenced  proceed- 


ings l)y  in 
was  vcriti 
lief.    Th( 
the  warra 
for  the  re 
by  oath  o 
fondant  o 
to  ])load  t 
a  plea  of 
the  ])rosec 
jury.    A 
sentenced 
until  the 

The  qu 

issued  ui)i 

olfcnse,  v( 

and  beliel 

right  to  s 

Section 

"When 

attorney, 

formation 

Section 

things: 

"If  the 
any  office 
visions  of 
iiupiiro  in 
able  grot 
duty  of  s 
before  soi 
pected  ])C 
by  affiihi' 
that  ho  b 
If  the 
or  (pialifi 
numifest 
sufficient 
refer  to  a' 
Kan.,  40: 


STATE  V.  GLEASON. 


173 


ings  by  information  or  com)>laint  in  the  district  court.  This 
Aviis  verified  by  the  county  attorney  upon  information  and  be- 
lief. The  deltMKhmt  moved  tlie  court  to  set  aside  and  quash 
tlie  warrant  issued  upon  the  information,  and  for  his  discharge, 
for  the  reason  that  no  probable  cause  was  sliown,  supported 
by  oatli  or  alllrmation.  This  motion  was  overruled.  The  de- 
fen(hint  objected  to  being  tried  upon  the  infornuition,  declined 
to  ])lead  thereto,  or  to  make  any  defense.  The  court  ordered 
a  plea  of  "  not  guilty  "  to  be  entered  in  this  behalf,  and,  after 
the  prosecutit)n  liad  introduced  all  its  evidence,  instructed  the 
jury.  A  vei'dict  of  guilty  was  rendered,  and  defendant  was 
sentenced  to  pay  a  line  of  $100  and  costs,  and  to  be  committed 
until  the  same  were  ])aid. 

Tlie  cpiestiou  is,  may  a  person  be  arrested  on  a  warrant 
issued  u[)on  a  complai'H  or  information,  cliarging  a  criminal 
offense,  verilied  on  noniing  but  the  county  attorney's  hearsay 
and  belief,  prior  to  a  preliminary  examination  or  waiver  of  the 
right  to  such  an  examination? 

Section  (IT'/,  chapter  S2,  Comp.  Laws  1^70,  reads: 

"  AVlien  tiie  infoi-mation  in  any  case  is  verified  by  the  county 
attorney,  it  sliall  be  suHicient  if  the  verification  be  upon  in- 
formation and  l)elief."'     Laws  1S71,  ch.  117,  ^  3. 

Section  12,  chai)ter  liS,  Laws  18S1,  provides,  among  other 
tilings: 

"If  the  county  attorney  of  any  county  shall  be  notified  by 
any  ofllcer  or  otliei"  person  of  any  violation  of  an}'  of  the  pro- 
visions of  tliis  act,  it  shall  be  his  duty  forthwith  to  diligently 
inquire  into  tlie  facts  of  such  violation,  and  if  thei'e  is  reason- 
able ground  for  his  instituting  a  prosecution,  it  shall  be  the 
duty  of  such  county  attorney  to  file  a  complaint  in  writing, 
before  some  court  of  competent  jurisdiction,  charging  the  sus- 
])ected  ]ierson  of  such  offense,  and  shall  verify  such  complaint 
liy  affidavit;  but  it  shall  be  sufficient  to  state  in  such  affkiuvit 
that  he  believes  the  facts  stated  in  such  complaint  to  be  true." 

If  the  statutes  were  controlling,  and  there  was  no  limitation 
or  qualification  thereof,  and  no  constitutional  inhibition,  it  is 
manifest  that  a  verification  upon  hejirsay  or  belief  would  be 
sullicient.  The  counsel  for  the  state  claim  this  to  be  so;  and 
refer  to  State  v.  Jf(H)f(/o)ne)\i/,  8  Kan.,  351,  and  State  v.  JS^aJf,  15 
Kan.,  404,  as  conclusive.    Kow,  section  07a  of  chapter  82  must 


""S   i'i 


1  s 


M 


17-1 


AMERICAN  CRIMINAL  REPORTS. 


be  interpreted  in  connection  with  section  09  of  the  same  chapter, 
■which  provides :  "That  no  information  sliall  be  filed  against 
any  person  for  any  felony  until  such  person  shall  have  had  a 
preliminary  examination  therefor,  as  provided  by  law,  before 
a  justice  of  the  i)eace,  or  other  examining  magistrate  or  officer, 
unless  such  person  shall  waive  his  right  to  such  examination; 
provided,  however,  that  informations  may  be  filed,  without 
such  examination,  against  fugitives  from  justice." 

For  the  pur|)ose  of  instituting  a  preliminary  examination, 
the  statute  requires  that :  "  Upon  complaint  made  to  any  nuigis- 
trate  that  a  criminal  offense  has  been  committed,  he  shall 
examine  on  oath  the  complainant,  Jind  any  witness  produced 
by  him,  and  shall  reduce  the  complaint  to  writing,  and  shall 
cause  the  same  to  be  subscribed  by  the  comjilainant,  and  if  it 
shall  appear  that  any  such  offense  has  been  committed,  the 
court  or  justice  shall  issue  a  warrant  naming  or  describing  tlio 
offense  charged  to  have  been  committed,  and  the  county  in 
which  it  was  committed,  and  require  the  oilicer  to  whom  it 
shall  be  directed  forthwith  to  take  the  ])ers()n  accused  and 
bring  him  before  some  court  or  magistrate  to  be  dealt  with 
according  to  law." 

Therefore,  in  all  cases  where  a  person  has  a  preliminary 
examination,  or  waives  his  right  to  such  examination,  the  de- 
fendant is  brought  before  the  magistrate  on  a  warrant  issued 
on  probable  cause,  and  supported  by  the  oath  or  affirmation  of 
some  person.  After  such  preliminary  examination,  if  it  shall 
appear  to  the  magistrate  that  an  offense  has  been  committed, 
and  that  there  is  probable  cause  to  believe  the  defendant 
guilty,  he  shall  either  accept  bail  from  the  defendant  for  his 
appearance  to  the  court  where  he  is  to  be  tried,  or,  if  the 
offense  be  not  bailable,  he  shall  be  committed  fin-  trial 

The  cases  of  The  State  v.  Montgomery,  f<fij>ni,  and  State  v. 
J!^ulf,  8uj)i'a,\\'erci  prosecutions  for  grand  larceny  —  felonies,— 
and  in  both  cases  preliminary  examinations  were  had  before 
the  filing  of  the  informations  in  the  district  court. 

In  the  case  of  State  v.  IContgomcry  it  was  said : 

"The  party  accused  has  the  right  to  a  preliminary  examina- 
tion and  the  finding  of  probable  cause  before  lie  can  be  placed 
upon  final  trial.  At  such  examination  he  can  bo  heard  by  his 
counsel  and  witnesses." 


And  citii 
further  sai( 
"  The  ob 
alluded  to. 
It  is  not  fo 
and  passed 
in  the  ins 
ffroundless 
met  by  the 
The  case 
of  State  V 
arc  not  on 
if  they  ha 
upon  whic 
Section 
"  The  rij 
property  a 
inviolate, 
supported 
place  to  1)1 
Section 
reads : 

"When 

peace,  on 

testify,  cii 

demeanor 

such  pers( 

for  trial." 

We  hcl 

is  arreste( 

Avith  the 

of  the  pc 

jurisdicti 

ceedings 

examinal 

a  justice 

diction,  I 

tion  lilei 

12  of  sai 

of  a  con 


STATE  V.  GLEASON. 


175 


And  citing  from  Waff/ihurn  v.  People,  10  Mich.,  385,  it  was 
further  said : 

"The  object  of  this  verification  is  not, as  in  the  examinations 
aUiuled  to,  to  satisfy  the  court  tiiat  the  defendant  is  guilty. 
It  is  not  for  the  purpose  of  evidence,  wliich  is  to  be  weighed 
and  passed  upon,  but  only,  as  we  think,  to  secure  good  faith 
in  the  institution  of  ihe  proceedings  and  to  guard  against 
groundless  and  vindictive  prosecutions,  and  this  object  is  fully 
met  by  the  previous  examination  and  a  verification  upon  belief." 

The  case  of  Sfu/e  v.  NuJf  was  decided  upon  the  authority 
of  State.  V.  Montijomet'i/,  supra,  and  therefore  these  decisions 
arc  not  only  conclusive  against  the  claim  of  the  defendant,  but, 
if  they  have  any  bearing,  rather  tend  to  support  the  argument 
upon  which  the  claim  is  presented. 

Section  15  of  the  bill  of  rights  declares: 

"  The  right  of  the  people  to  be  secure  in  their  persons  and 
property  against  unreasonable  searches  and  seizures  shall  be 
inviolate,  and  no  warrant  shall  issue  but  on  probable  cause, 
supported  by  oath  or  aliirnuition,  particularly  describing  the 
place  to  be  searched,  and  the  person  or  property  to  be  seized." 

Section  2  of  procedure  before  justices,  in  misdemeanors, 
reads : 

"  Whenever  a  complaint  shall  be  made  to  a  justice  of  the 
peace,  on  the  oath  or  affirmation  of  a  person  competent  to 
testify,  cliai'ging  any  person  with  the  commission  of  any  mis- 
demeanor, he  shall  forthwith  issue  a  warrant  for  the  arrest  of 
such  ])erson,  and  cause  him  to  be  brought  forthwith  before  him 
for  trial." 

We  held  in  hi  re  Donndhj,  30  Kan.,  101,  that  where  a  person 
is  arrested  and  brought  before  a  justice  of  the  peace,  charged 
with  tlie  commission  of  a  misdemeanor  of  which  the  justice 
of  the  peace  and  the  district  court  have  concurrent  original 
jurisdiction,  the  state  has  no  right  to  elect  to  treat  the  pro- 
ceedings before  the  justice  of  the  peace  as  a  mere  preliminary 
examination.  Therefore,  in  cases  of  misdemeanor,  of  which 
a  justice  of  the  peace  and  district  court  have  concurrent  juris- 
diction, the  trial  must  proceed  upon  the  complaint  or  informa- 
tion filed,  without  any  preliminary  examination.  And  section 
12  of  said  chapter  128  is  the  only  authority  for  the  verification 
of  a  complaint  upon  a  belief  merely,  where  the  defendant  is 


.#1 


j,:.^::: 


Ih    I 


17C 


AMERICAN  CRIMINAL  REPORTS. 


not  ponnitted  to  have  a  preliminary  examination  before  his 
final  trial,  excepting  in  the  cases  i)rovided  for  by  the  statute 
for  filing  informations  against  fugitives  fi-om  justice. 

In  this  condition  of  matters  the  question  recurs  upon  tlic 
interpretation  to  be  given  to  that  clause  of  section  15  of  the 
bill  of  riglits,  "  tliat  no  warrant  shall  issue  but  on  probable 
cause,  supi)oi'ted  by  oath  or  aifiiination."     Of  coui-se,  it  must 
be  conceded  that  the  constitution  is  the  superior  and  para- 
mount law,  and  that  said  r-ection  15  is  declaratory  of  tiie  funda- 
mental rights  of  the  citizen,  and  is  intended  to  protect  him  in 
his  liberty  and  property  against  the  arbitrary  acti<m  of  those 
in  authority.    So  long  as  this  section  is  in  force,  the  principles 
therein  declared   are  to  remain  absolute  and   unchangeal)lo 
rules  of  acti<m  and  decision.    The  legislature  cannot  infringe 
thereon,  and  the  courts  must  yield  implicit  ol)edionce  thereto. 
If  no  warrant  shall  issue  but  u])on  probable  cause,  supported 
by  oath  or  affirmation,  the  support  must  bo  something  more 
than  hearsay  or  belief.    Where  a  person  or  officer  states  upon 
oath  "  that  the  several  allegations  and  facts  set  forth  in  the 
foregoing  information  arc  true,  as  he  has  been  informed  and 
verily  believes,*'  he  may  have  no  knowledge  of  or  information 
upon  the  subject  except  mere  hearsay,  and  yet  he  can  conscien- 
tiously make  such  declaration.    Atehimn  v.  liiti'tholouj,  4  Kan.. 
124.    A  complaint  thus  verified  proves  nothing.     It  does  not 
state  facts,  but  only  the  affiant's  hearsay  knowled  "e  and  belief. 
It  is  not  a  complaint,  an  information  or  declarat.    i  supported 
b\''  an  oath  or  affirmation.    Atehimn  v.  JirtHholoin^  inipra; 
Thompson  r.  Jfigtjinhothain,  18  Kan.,  42.     At  common  law  an 
information  might  be  filed  under  the  English  practice  aguinst 
persons  charged  with  misdemeanors,  yet  no  rule  was  granted 
in  regard  to  such  cases,  except  upon  such  evidence  as  would, 
uncontradicted,  make  out  the  ofl'ense  beyond  a  doubt.     Arclib. 
Crim.  PI.,  :<;;  12., ,■  v.  WUhff,  0  Term  \i\  2o4;  LW  i\  WIU lam- 
son,  3  Barn,  .fe  Aid.,  582;  Hex  v.  Bull,  1  Wils.,  J>;];  LWv.  II ll- 
lers,  2  Chit.  R.,  103;  Refjhmv.  lialdwhu  8  Adol.  vfe  E.,  108;  K^- 
jyarte  U7///Vn;«.s%  cited  1  Har.  Dig.,  2208;  I  Chit.  Crim.  Law, 
850,  857.     Said  section  15  is  little  more  than  the  affirmation  of 
the  great  constitutional  doctrine  of  the  common  law.    Article 
4  of  the  amendments  to  the  constitution  of  tiio  United  States 
is  almost  identical  with  said  section  15,  and  Story  says  that 


"this  pro 
the  right 
property, 
was,  dou 
both  in  E 
warra'^ts, 
2  Sto.y, 
may  issue 
the  comn 
tion  to  pr 
arbitrary 
cjoing  so 
The  expr( 
compreht 
atRrmati( 
fendant  is 
allegatioi 
ing  opini< 
Burfonh 
the  supi-e 
3  Crancl 
Com.,  3  1 
King's  r>( 
2)arte  Bt^ 
Tureud  ( 
attorney 
tion  or  o 
who  can. 
it  upon  I 
also  atta 
mation  i 
knowled 
plaint  oi 
officer  c 
that  act, 
facts  of 
statemei 
some  p< 
requirer 
ment  m 


STATE  V.  GLEASON. 


177 


"  this  provision  seems  indispensable  to  the  full  enjoyment  of 
the  rights  of  personal  security,  personal  liberty  and  private 
property,  .  .  .  and  its  introduction  into  the  amendments 
was,  doubtless,  occasioned  by  the  strong  sensibility  excited 
both  in  England  and  in  America  uj)on  the  subject  of  general 
warra'^ts,  almost  upon  the  eve  of  the  America^  revolution." 

2  Stoi'v,  Const.,  §  1902.  If  a  wari'ant,  in  the  lirst  instance, 
may  issue  upon  mere  hearsay  or  l)olief,  then  all  the  guards  of 
the  common  law  and  of  the  bill  of  rights  of  our  own  constitu- 
tion to  protect  the  liberty  and  property  of  the  citizen  against 
arbitrary  power  are  swej)t  away.  There  is  no  necessity  for 
ffoinfr  so  far,  and  the  constitution  warrants  no  such  conclusion. 
Tiie  expressions  of  the  bill  of  rights  are  very  plain  and  very 
coin|)reliensive,  and  cannot  be  misunderstood.  The  oath  or 
atfirmation  of  a  complaint  or  inlormation  upon  which  a  de- 
fondant  is  arrested  in  the  first  instance  must  set  forth  that  the 
allegations  and  facts  there'll  contained  are  true.  See  dissent- 
ing opinion  of  ('ranch,  J.,  in  the  case  of  Kc piirte  John  Atkins 
Jhtrfo)')],  1  C'l-anch,  C  C.,  oTO.  which  opinion  was  adopted  by 
the  sui)rome  court  of  the  United  States.     Kr  jxirfe  Burford, 

3  Cranch,  447;  State  v.  J.  //.,  1  Tyler  (Vt.),  444;  Connei'  v. 
Com.,  3  l}in.  (Pa.),  3S;  Klsce  v.  Smith,  I  Dowl.  «fc  K.  (Court  of 
King's  Bench ),  07;  State,  c.  Mann,  5  fred.  Law  (N.  C),  45;  Kc 
jmi'te  nH)'foi'(l(iiy\\).VX.M'K'\\.),  15J  \.  \\ .  Rep.,  170;  U.S.  v. 
Turead  (U.  S.  C.  C,  K.  J).  La.),  20  Fed.  Itep.,  021.  If  a  county 
attorney  cannot  mal;o  su(!h  a  verification,  then  the  informa- 
tion or  com|)laint  shouhl  be  nuide  by  the  oath  of  some  one 
who  can.  If  a  county  attorney  files  a  comi)laint.  and  verifies 
it  up(m  belief,  under  section  12  of  said  chapter  12S,  he  must 
also  attach  thereto  a  statement  supjjorted  by  the  oath  or  affir- 
mation of  some  other  [)erson  willing  to  testify  of  his  own 
knowledge  that  the  facts  and  allegations  stated  in  the  com- 
plaint or  information  are  true.  If,  upon  being  notified  by  an 
officer  or  other  person  of  the  violation  of  the  provisions  of 
that  act,  the  county  attorney  makes  diligent  inquiry  into  the 
facts  of  such  violation,  he  can,  in  almost  all  cases,  obtain  a 
statement  or  affidavit,  sui)poited  by  the  oath  or  affirmation  of 
some  ])erson,  which  will  justi'y  him  in  filing  the  complaint 
required  of  him  by  said  section  12;  and  such  affidavit  or  state- 
ment may  be  attached  to  such  complaint,  and  then  the  com- 

VoL.  V— 13  N 


# 


I  •■ 


r 


178 


AMERICAN  CRIMINAL  REPORTS. 


plaint  will  not  be  founded  upon  surmise  or  hearsay,  but  will  be 
based,  in  fact  and  in  law,  upon  probable  cause,  supporteil  by 
oath  or  affirmation,  and  thereon  a  warrant  may  issue  from  any 
court  having  competent  jurisdiction.  Of  course,  if  the  county 
attorney  has  personal  knowledge  of  the  matters  and  things 
charged  in  the  information,  he  may  support  it  by  his  own  oath 
or  affirmation. 

Upon  the  return  of  this  case  to  the  district  court,  the  com- 
plaint or  information  may  be  verified,  as  the  bill  of  rights 
commands,  and  a  warrant  thereon  may  issue  for  the  arrest  of 
the  defendant;  but  the  proceedings  already  had  are  erroneous. 
The  motion  to  set  aside  the  warrant  ought  to  have  been  sus- 
tained ;  therefore  the  judgment  of  the  district  court  must  be 
reversed  and  the  cause  remanded. 

(All  the  justices  concurring.) 


Wartner  v.  The  State. 


(102  Ind.,  51.) 
CSONSTITUTIONAL  LAW:  Right  of  trial  by  jury— Waiver — Plea  of  guilty. 

1.  RiOET  TO  A  PUBLIC  TRIAL  BY  AN  IMPARTIAL  JURY.—  Under  Section  13 

of  the  bill  of  riglits  in  the  constitution  of  tliiu  state,  in  all  criminal 
prosecutions  the  accused  has  the  right  to  a  public  trial  by  an  impartial 
jury,  and  of  this  right  he  cannot  be  deprived,  nor  can  he  waive  the 
same  unless  such  waiver  is  expressly  authorized  by  statute. 

2.  On  plea  of  guilty  or  not  guilty,  jury  must  assess  punishment.— 

Under  section  1821,  R.  S..1881,  the  defendant  in  a  capital  case  nmst  be 
tried  by  a  jury ;  and  upon  conviction  of  a  capital  offense,  u|H)n  his  plea 
either  of  guilty  or  not  guilty,  it  is  in  the  discretion  of  the  jury  alone, 
under  the  statute,  to  assess  his  punishment,  either  that  he  suffer  deatli 
or  be  imprisoned  in  the  state  prison  during  life..  Upon  conviction  for 
such  offense  the  court  is  not  authorized  by  statute  to  assess  the  punisli- 
ment  without  the  intervention  of  a  jury ;  and  this  is  so  even  where  the 
defendant  interposes  a  plea  of  guilty. 

From  the  Jasper  Circuit  Court. 

J'l  W.  Bahcook  and  S.  P.  Thompson,  for  ap^^ellant. 
F.  T.  Ilord,  attorney-general,  for  the  state. 


HowK, 
containin 
in  each  o 
properly 
felony  of 
term,  the 
and  upon 
mcnt,  sai 
on  the  21 
that"th< 
ciently  a< 
his  plea  c 
first  cour 
death." 
court  ad; 
penalty  ( 
May,  A. 
It  is  v( 
is  wholly 
versed  as 
in  the  cc 
criminal 
public  tr 
offense  s 
to  a  trial 
constitul 
even  wa 
ized  by  s 
of  the  ii 
not  only 
of  his  ri 
trial  the 
it  is  pro 
torney, 
the  coui 
jury." 

Undc 
court,  a 
of  a  <lc 
partial 


WARTNER  V.  THE  STATE. 


179 


HowK,  J.  On  the  8th  day  of  January,  1885,  an  indictment 
containing  three  counts  was  duly  returned  into  tlie  court  below, 
in  each  of  which  counts  the  apj)ellant  Weibern  Wartner  was 
properly  charged  with  the  commission  of  one  and  the  same 
felony  of  murder  in  the  first  degree.  Afterwards,  at  the  same 
term,  the  appellant  being  in  custody  was  brought  into  court, 
and  upon  arraignment,  for  plea  to  the  first  count  of  the  indict- 
ment, said  that  he  was  guilty  as  therein  charged.  Thereafter, 
on  the  21st  day  of  January,  1885,  it  was  shown  by  the  record 
that  "  the  court,  having  heard  the  eviderce  and  being  suflB- 
ciently  advised  in  the  premises,  finds  the  defendant  guilty,  on 
his  plea  of  guilty,  heretofore  entered  herein,  as  charged  in  the 
first  count  of  the  indictment,  and  assesses  his  punishment  at 
death."  Upon  this  finding  and  no  other,  on  the  same  day,  the 
court  adjudged  that  the  ap])ellant,  Wartner,  should  suffer  the 
penalty  of  death,  in  the  statutory  mode,  on  the  15th  day  of 
May,  A.  D.  1885. 

It  is  very  clear  that  the  judgment  of  the  court,  in  this  cause, 
is  wholly  unauthorized  by  law  and  nmst  be  set  aside  and  re- 
versed as  an  al)solute  nullity.  Section  13  of  the  bill  of  rights, 
in  the  constitution  of  this  state,  provides  as  follows:  "In  all 
criminal  prosecutions  the  accused  shall  have  the  right  to  a 
public  trial  by  an  impartial  jury  in  the  county  in  which  the 
offense  shall  have  l)eeu  committed,''  etc.  The  appellant's  right 
to  a  trial  of  this  prosecution  against  him  is  his  personal  and 
constitutional  right  which  he  cannot  be  deprived  of,  nor  can  he 
even  waive  such  right,  unless  such  waiver  is  expressly  author- 
ized by  statute.  The  appellant's  case,  as  charged  in  each  count 
of  the  indictment,  is  a  capital  case;  and,  in  such  a  case,  there 
not  only  is  no  statutory  authority  for  the  defendant's  waiver 
of  his  right  to  a  trial  by  jury,  but  the  statute  declares  that  the 
trial  thereof  "must  be  by  jury."  In  section  1821,  R.  S.  1881, 
it  is  provided  as  follows:  "  The  defendant  and  prosecuting  at- 
torney, with  the  assent  of  the  court,  may  submit  the  trial  to 
the  court,  except  in  capital  cases.  All  other  trials  must  be  by 
jury." 

Under  this  section  of  the  statute,  it  has  been  held  by  this 
court,  and  correctly  so,  we  think,  that  the  constitutional  right 
of  a  <lefcndant  in  a  criminal  cause  to  a  public  trial  by  an  im- 
partial jury  is  a  right  which  ho  may  waive  if  he  choose  so  to 


r 

aw 


180 


AMERICAN  CRIMINAL  REPORTS. 


do,  and  if  such  waiver  is  authorized  by  statute.  2lur2>hi/  v. 
State,  07  Ind.,  579.  "Where  the  defendant  in  a  criminal  case  is 
authorized  by  statute  to  waive  a  trial  by  jury,  the  statute  is 
strictly  construed.  Thus,  it  has  been  repeatedly  lu^ld,  that 
where  such  a  statute  would  authorize  the  defendant  in  u  erhninal 
case  to  waive  all  right  to  a  jury  trial,  it  \v<juld  not  authorize 
him  to  consent  to  a  trial  by  a  jury  of  loss  than  twelve  juiors. 
lii'oinn  V.  State,  IG  Ind.,  49fi;  AlUn  i\  Stitte,  :A  Ind.,  4('.I ;  Mi>i„y 
V.  State  ex  rel,  72  Ind.,  358. 

In  the  case  in  hand,  the  record  fails  to  show  whether  or  not 
the  appellant  waived,  or  attem]>tetl  to  waive,  his  constitutionul 
right  to  a  trial  by  jury ;  but,  as  such  waiver  is  not  authorized 
by  statute  in  this  case,  the  silence  of  the  record  on  this  point 
is  wholly  immaterial,  ^or  is  it  material  that  the  record  fails 
to  show  any  objection  or  exceptioii,  by  or  on  behalf  of  the 
appellant,  to  the  trial  of  his  case  by  the  court,  or  to  any  of  the 
proceedings  had  therein.  It  is  shown  by  the  record  that  ap- 
pellant's case  is  a  caj^ital  case,  and  that  the  coui-t,  without  the 
intervention  of  a  jui'v,  tried  his  ease,  found  him  guilty  as 
charged,  and  adjudged  that  he  suffer  the  jjoiuilty  of  death. 
This  the  court  was  not  authorized  to  do.  nor  was  the  appellant 
authorized  to  consent  thereto  by  any  law  of  this  state.  A'ou- 
ner  v.  State,  96  Ind.,  '•2\'.\.  After  the  appellant's  plea  of  guilty, 
the  proceedings  and  judgment  of  the  c(nu't  are  erroneous,  and 
errors  of  so  grave  a  character  that  he  has  the  right  to  insist 
upon  them  here  as  affording  substantial  grounds  for  the  reversal 
of  the  judgment.  The  law  of  his  case,  as  declared  in  section 
1904,  R.  S.  1881,  is  that  for  the  felony,  whereof  he  says  he  is 
guilty,  he  "shall  suffer  death  or  be  imprisoned  in  the  state 
prison  during  life,  hi  the  (Viserctlon  of  the  jnt'y."''  In  assessing 
his  punishment  the  record  shows  that  the  court  usurped  and 
exercised  a  discretion  which  the  statute  has  conferred  upon  the 
jury,  and  not  upon  the  court.  Under  the  statute  the  appellant 
had,  and  has,  the  right  to  have  a  jury  say,  in  their  discretion, 
which  one  of  the  two  punishments  he  shall  suffer. 

The  judgment  is  reversed  and  the  cause  is  remanded  with 
instructions  to  submit  the  same  to  a  jurv. 


EX  PARTE  WOOTEN. 


Ex  PAKTE  WoOTEN. 


181 


(C2  Miss.,  174.) 
Constitutional  law;  Right  of  trial  by  Jur)/  in  petty  offenses. 

Section  31  of  article  1  of  the  constitution  (Mississippi)  doclaros  that  "Tin" 
legislature,  incases  of  petit  larn>iiy,  assault,  assault  and  battery,  atfiay. 
riot,  unlawful  assembly,  drunkenness,  vagrancj'.  and  other  niisdi- 
meanors  of  like  character,  niaj'  dispense  with  an  inipiest  of  a  grand 
jury  and  may  authorize  prosecutions  before  justices  of  the  peace." 
Under  this  provision  a  statute  authorizing  prosecutions  before  jusliires 
of  the  peace  for  violations  of  a  law  prohibiting  the  sale  of  intoxicating 
liquors  is  valid,  notwithstanding  it  provides  for  a  trial  "  without  the 
intervention  of  a  jmy;"  and  the  language  quoted  from  the  constitu- 
tion seems  to  contemplate  a  trial  by  a  justice  of  the  peace  rather  than 
by  a  jury. 

Appeal  from  the  decision  of  TIoii.  W.  S.  Foathcrston,  judge 
of  the  second  judicial  district,  on  habcUH  carpun. 

An  act  of  the  legisUiture,  approved  A[arch  7,  18S2,  entitled 
"An  act  prohibiting  tiie  sale  of  or  giving  away  of  intoxicating 
liquors  within  five  miles  of  the  University  of  Ali.ssissippi,"  ))ro- 
vided  in  the  second  section  thereof  (the  11  est  section  having  de- 
fined the  offenses  embraced  in  the  acti,  "That  for  each  and 
every  violation  of  this  law  the  party  oH'onding  shall,  upon  con- 
viction, be  lined  not  less  than  fifty  nor  nun'e  than  one  hundred 
and  fifty  dollars,  or  imprisoned  not  less  than  one  nor  more  than 
six  months,  or  [l)e  punisheilj  by  both  such  fine  and  imprison- 
ment; ,  ,  .  and  the  several  justices  of  the  peace  of  Lafay- 
ette county  and  the  mayor  of  the  town  of  Oxford  shall,  upon 
affidavit  of  any  person,  have  ct)ncurrent  jurisdiction  with  the 
circuit  court  of  said  county  of  all  violations  of  the  same  [the 
statute]  in  said  county,  and  trials  be  had  in  said  mayor  and 
justices'  courts  without  the  intervention  of  a  jury,  subject  to 
appeals  as  in  other  criminal  cases,"  etc. 

W.  A.  J.  Wooten  was  brought  before  a  justice  of  the  peace 
of  Lafayette  county  upon  a  ciiarge  of  violating  this  statute. 
He  demanded  a  trial  by  jury,  but  the  request  was  refused,  and 
the  justice  of  the  ])eace  himself  tried  the  charge,  found  the 
accused  guilty,  and  sentenced  him  to  pay  a  fine  of  $75.  In 
default  of  payment  of  his  fine  he  was  put  in  jail.  Thereupon 
he  ap[)lietl  for  the  writ  in  this  case  and  asked  to  be  released 


f  ■  %  i^ 


182 


AMERICAN  CRIMINAL  REPORTS. 


.  V 

■ 

H 

'■       :i 

^H 

\       \ 

j^^l 

■ 

from  his  confinement,  on  the  ground  that  liis  request  for  a  jury 
trial  had  been  refused  and  he  had  been  convicted  by  the  jus- 
tice of  the  peace.  The  judge,  after  hearing  his  case,  remanded 
the  relator  to  jail,  and  he  appealed  to  this  court. 

Section  31,  article  I,  of  our  constitution  (which  is  in-olvcd 
in  the  decision  of  this  case),  is  in  the  following  language:  ''No 
]>erson  shall,  for  any  indictable  offense,  be  proceeded  against 
criminally  by  information,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  the  militia  when  in  actual  service;  provided^ 
that  the  legislature  in  cases  of  petit  larceny,  assaults,  assault 
and  battery,  affray,  riot,  unlawful  assembly,  <lrunkenness,  va- 
grancy, and  other  misdemeanors  of  like  character,  may  dis- 
pense with  an  inquest  of  a  grand  jury,  and  may  authorize 
prosecutions  before  justices  of  the  peace  or  such  other  inferior 
court  or  courts  as  may  be  established  by  the  legislature ;  and 
the  proceedings  in  such  cases  shall  be  regulated  by  law." 

W.  V.  Sullivan,  for  the  appellant. 

J.  L.  Harris,  for  the  state. 

Campbell,  C.  J.,  delivered  the  opinion  of  the  court : 
Section  31,  article  I,  of  the  constitution  of  this  state  em- 
powers the  legislature  to  authorize  prosecutions  before  justices 
of  the  peace  or  other  inferior  courts  of  its  creation  in  cases  of 
misdemeanors  of  the  character  enumerated,  viz. :  petit  larceny, 
assault  and  battery,  and  others  mentioned  for  illustration, 
and  to  regulate  the  proceedings  in  such  cases.  So  far  from  its 
being  the  constitutional  right  of  one  thus  prosecuted  before 
a  justice  of  the  peace  or  other  inferior  court  to  be  tried  by  a 
jury,  it  may  be  seriously  doubted  whether  the  introduction  of  a 
jury  by  act  of  the  legislature  is  not  a  marring  of  the  constitu- 
tional scheme  for  the  trial  of  petty  offenses  by  a  justice  of  the 
peace  or  other  inferior  court  to  be  created.  There  is  no  allu- 
sion to  a  jury  in  the  section  cited,  and  the  language  employed 
suggests  a  trial  by  the  justice  of  the  peace  or  other  court, 
rather  than  by  a  jury  in  such  court. 

Judgment  affirmed. 

Note,— The  summary  manner  in  which  the  court  in  the  above  ease  dis- 
poses of  a  great  constitutional  question  is  somewhat  remarkable,  if  not 
actually  alarming.  But,  disclaiming  any  intention  to  ini])Ugn  tlie  motives 
of  the  Mississippi  court,  we  may  here  very  aptly  quote  tiie  language  em- 
ployed by  Mr.  Justice  Cooley  in  State  Tax-Law  Cases,  54  Mich.,  350-446. 


Hesays: 
it  seems  to 
jiosition; 
void  which 
of  logislati 
examined  i 
certainty  a 
through 
class  of  st 
purpose  to 
on  the  su 
"  it  is  bett( 
inent  to  si 
iH-'cause  th 
lead  to  a  d 
courts  an( 
is  and  to 
a\i)iM  ant 
criminal  b 
of  the  lib 
within  th< 
demnatioi 
dices.    In 
majesty  s 
p*)litical  f 
hetwcen  t 
all  times 
protect  til 
their  bid( 
tion  ai-e  1 
rogativcs 
of  civil  u 
of  the  nil 
or  annull 
upon  to  ( 
uiits  bin 
constitui 
at  an  er 
cline  an( 
are  irre 
executi^ 
elected 
particul 
he  has  1 
Btitutio 
or  late, 
ing  foi 
and  in 
people, 


EX  PARTE  WOOTEN. 


183 


Hi!  says :  "  Personally,  I  have  little  care  how  this  case  shall  be  decided ;  but 
it  seoms  to  me  that  in  constitutional  qiiestlons  the  court  is  drifting  to  this 
poflition :  that  those  statutes  are  constitutional  which  suit  us,  and  those  are 
void  wliicli  do  not."    Every  lawyer  wIjo  has  given  thought  to  the  subject 
of  legislation  for  the  suppression  of  intvmjierance,  and  who  hits  carefully 
examined  and  analyzed  tlie  decisions  of  courts,  will  admit  that  more  un- 
certainty and  doubt  have  crept  into  the  administration  of  the  criminal  law 
through   hasty  and  ill-guarded  dicta  and  decisions  bearing    upon  this 
class  of  statutory  crimes  than  through  all  other  agencies.    It  is  not  <>ur 
purpose  to  assail  laws  of  this  nature,  for,  whatever  views  we  may  entertain 
on  the  subject,  we  agree  with  the  author  of  the  "  Rights  of  Man,"  that 
"  it  is  better  to  obey  a  bad  law,  making  use  at  the  same  time  of  every  argu- 
ment to  show  its  errors  and  procure  its  repeal,  than  to  forcibly  violate  it, 
Iwcause  the  precedent  of  breaking  a  bad  law  might  weaken  the  for(!e  and 
load  to  a  diacretioimiy  violation  of  those  which  are  go<xl."    P>om  this  text 
courts  and  judges  may  draw  salutary  lessons.    To  ascertain  what  tlie  law 
is  and  to  decide  whether  or  not  it  conflicts  with  the  constitution  is  the 
alplta  and  the  omega,  the  lK?ginniiig  and  the  end,  of  a  judge's  duty.     A 
criminal  statute  of  doubtful  meaning  ought  always  to  be  construed  in  favor 
of  the  liberty  of  the  citizen  rather  than  against  it,  and  when  a  law  falls 
within  the  ban  of  the  constitution,  courts  ought  to  place  their  seal  of  con- 
denmation  u|)on  it  regardless  of  their  ])ersonal  feelings,  passions  or  preju- 
dices.   In  this  way  only  can  courts  uphold  the  dignity  anil  maintain  the 
majesty  and  sujn'eniacy  of  the  law  under  the   constitution.     Under  our 
jiolitical  system  we  have  neither  king  nor  parliament  as  the  final  arbiter 
iK'tween  the  citizen  and  the  government  or  state.     In  war  and  in  peace,  at 
all  times  and  under  all  circumstances,  our  courts  aie  ready  to  guard  and 
protect  the  right'-  and  liberties  of  the  citizen  under  the  constitution.     At 
their  bidding  legislative  enactments  made  in  contravention  of  the  constitu- 
tion ai'e  held  inoix'rative  and  void.     Executive  decrees,  functions  and  pre- 
rogatives exercised  and  performed  by  the  ])re8ident,  whether  in  the  cajjacity 
of  civil  magistrate  or  as  commaniler-in-chief  of  the  land  and  naval  forces 
of  the  nation,  when  not  sanctioned  by  that  instrument  are  stayed,  modified 
or  annulled.     From  the  moment,  therefore,  that  any  judge  who  is  called 
upon  to  decide  a  (juestion  involving  the  rights  or  liberties  of  a  citizen  jier- 
niits  himself  to  Ite   swayed  by  personal  prejudices,  however  honest,  our 
constitutional  guaranties  are  iis  nothing,  and  the  liberties  of  the  people  are 
at  an  end.    It  is  aptly  said  by  the  leai'ued  historian  who  wrote  TJie  De- 
cline and  Fall  of  the  Roman  Empire,  that  the  principles  of  a  free  constitution 
are  irrecoverably  lost  when  the  legislative  power  is  nominated  l)y  the 
executive.     And,  with  equal  force,  may  it  be  said  that  when  a  judge  is 
elected  to  fill  a  judicial  position  because  of  his  predilections  in  favor  of  a 
particular  law,  or,  when  he  is  set  aside  and  defeated  for  the  oHice  because 
he  has  the  manhood  to  do  right,  the  boast  of  freedom  under  a  written  con- 
stitution becomes  a  "  tinkling  cyndtal" — the  cant  of  hypocrisy;  and,  soon 
or  late,  in  such  case,  the  structure  of  our  institutions  must  tall  with  crush- 
ing force  ujwn  the  heads  of  those  who  are  slowly  but  surely  weakening 
and  impairing  its  foundations.    If  jufi<res,  who  are  the  creatures  of  the 
people,  are  to  be  swayed  by  the  clamor  of  the  majority,  and  to  hold  "  that 


184 


AMERICAN  CRIMINAL  REPORTS. 


those  statutes  are  constitutional  which  suit  us,  and  those  ai-e  void  which  do 
not,"  what  difference  can  there  be  in  this  particular  between  a  republican 
form  of  government  under  a  written  constitution  and  an  absolute  mon- 
archy, such  as  it  was  sought  to  establish  under  James  the  First  of  En>;liiiid? 
That  despot,  in  order  to  give  colorable  legal  sanction  to  his  usuriiations, 
resorted  to  the  exiwdient  of  holding  the  court  of  high  comniisr.i()n.  the 
king  thus  "  judging  whatever  cause  he  pleased,  in  his  own  person,  free  from 
all  risk  of  prohibition  and  appeal."    In  tlie  hope  of  having  his  schemes  in 
this  behalf  favorably  prejudged,  he  summoned  his  judges  before  him  on  a 
Sunday  in  order  to  ascertain  what  they  might  say  ngainst  the  proposal 
suggested.      Archbishop  Bancroft,   acting    as    sjjokesman    of   the    king, 
claimed  that  as  the  judges  were  but  the  king's  delegiites  to  administer  the 
law  in  his  name,  what  might  be  done  by  the  agent  could  be  doni-  by  the 
principal.     "This  is  clear  divinity,"  said  his  grace:  "such  authority  doulit- 
less  belongs  to  the  king  bj-  the  word  of  God  in  the  Scriptures."     But  my 
Lord  Coke  and  his  associates  could  not  he  swayed  by  the  i)ersuasive  argu- 
ment of  the  archbishop.    They  were  found  faithful  to  tlieir  gieat  trusts, 
and  upheld  the  honor,   dignity  and   integrity  of  tlie    judiciary.      Tliey 
maintained  the  majesty  of  the  l.iw  as  it  was  handed  down  to  them  in 
Magna  Charta,  and  denied  the  right  of  the  king  to  sit  in  judgment  in  the 
courts,  even  at  the  risk  of   incurring  displeasure  and  of   being  stripped 
of  their  lands,  dignities  and  offices. 

A  case  recently  arose  in  Iowa  in  which  the  cljief  justice  of  tin*  court  of 
that  state  and  his  as.sociates  on  tlii'  bench  were  put  to  a  somewhat  siuiilar 
test  by  the  king  Jlajority.     The  chief  justice  was  serving  the  last  year  of 
his  term  as  justice  of  the  supreme  court  when  calU'd  upon  to  decide  the 
case  of  Koehler  and  Latuji'  v.  HiU,  (50  Iowa,  543.     Tlie  (luestion  presented 
in  the  case  concerned  tiie  validity  of  an  amendment  to  the  const  it  utiin 
prohibiting  the  manufacture  and  sale  of  intoxicating  litjuors  Jis  a  l^cverage, 
this  amendment  having  been  adopted  by  a  majority  of  about  thirty  thou- 
sand at  an  election,  and  agreed  to  by  two  successive  general  assend)lies  bo- 
fore  its  submission  to  the  electors,  but  not  in  the  m.uiner  re(|uired  by  the 
constitution.    The  chief  justice  knew  as  well  as  he  knew  anything  that  the 
decision  he  was  about  to  deliver  would  defeat  his  renomination  for,  and  re- 
election to,  the  judgeship;  and,  indeed,  the  language  used  by  him  clearly 
shows  that  he  was  impressed  with  the  consciousness  that  he  was  tolling  his 
own  judicial  death  knell.    And  yet  courageously  and  Jinflincbingiy  he  says; 
"  We  nave  approached  and  discussed  this  grave  question  with  a  full  appre- 
ciation of  the  responsibilities  which  it  Involves,  and  we  have  given  to  its 
consideration  the  earnest  attention  which  its  importance  demands.    Wo 
have  sought  to  maintain  the  supremacy  of  tlie  coiistihitlon  at  whatever 
hazard.     It  is  for  the  protection  of  minorities  that  conHtitiiiions  are  framed. 
Sometimes  constitutions  must  be  interposed  for  the  protection  of  majorities 
even  against  themselves.     Constitutions  are  adopted  in  times  of  public  re- 
pose, when  sober  reason  holds  her  citadel,  and  an,'  designed  to  ciieck  the 
surging  i)a,ssions  in  times  of  jK)pular  excitement.     But  if  courts  could  be 
coerced  by  iiopular  majorities  into  a  disregard  of  their  provisions,  constitu- 
tions would  become  mere  '  ropes  of  sand,' and  there  would  be  an  end  of 
social  security  and  of  constitutional  freedom.    Tlie  constitution  is  the  palla- 


dium of  rJ 
stage  of  p| 
the  stage 
or  may  st 
Bacreligioi| 
egated  to 
it  is  to  be 
an  honestJ 
Passing! 
the  quest! 
vision  qui 
rights,  ari 
indictmeni 
pulilic  trif 
that  tlie  r| 
provided  1 
construed 
In  expou 
apjtropria 
kind,  whi 
fundamer 
or  meanir 
dehberatit 
the  men  v 
constitutii 
7  and  12  c 
vision  tha 
an  iiKiucs 
of  the  pea 
the  tirst  \ 
upon  indi 
to  the  m 
petty  olTi 
and,  in  t 
justices  ' 
oath  by 
prosi'cut" 
land,  wh 
constitut 
fundamt 
for  exai 
silent  in 
accord in 
of  const 
construe 
as  a  fun 
should  I 
i\w  con 
Consts., 
favors  1 


EX  PARTE  WOOTEN. 


185 


dium  of  republican  freedom.  The  young  men  coming  forwai'd  upon  the 
stage  of  political  action  must  be  educated  to  venerate  it ;  those  already  upon 
the  stage  nuist  bo  taught  to  obey  it.  Whatever  interests  may  be  advanced 
or  may  suffer,  whoever  or  whatever  nuiy  be  '  voted  up  or  voted  down,'  no 
sacreligious  hand  must  be  laid  ui)oii  the  constitution."  Judge  Day  was  rel- 
egated to  private  life,  but  he  jierforined  a  i)atriotic  duty  in  a  great  way.  and 
it  is  to  be  hoped  that  his  noble  examjjle  will  long  remain  as  the  standard  of 
an  honest,  upright,  brave  and  spotless  judiciary. 

Passing,  then,  from  this  general,  to  a  more  i)articular,  discussion  of 
the  questicm  involved  in  the  above  case,  besides  the  constitutional  pro- 
vision quoted  in  the  statement  of  the  case,  it  is  provided  in  the  bill  of 
rights,  article  1,  section  7,  that  in  all  criminal  prosecutions,  whether  by 
indit'tment  or  information,  the  .iccuscd  shall  be  entitled  to  a  speedy  and 
pulilic  trial  by  a  jury  ;  by  section  V2  of  the  same  article  it  is  also  provided 
that  tlie  right  of  trial  by  jury  shall  remain  inviolate;  and  by  section  'd'2  it  ia 
provided  that  the  enunu'ration  of  rights  in  tliis  constitution  sliall  not  be 
construed  to  deny  or  imjjair  others  retained  by.  and  inherent  in,  the  people. 
In  expounding  the  cc^nstitution,  every  word  must  have  its  due  force  and 
a})proiiriate  meaning,  for  it  is  not  to  be  inferred  that  in  an  instrument  of  that 
kind,  which  was  intended  to  serve  iis  the  mere  groundwork  or  outlines  of 
fundamental  principles,  wonls  wt're  inserted  which  were  to  have  no  force 
or  meaning.  Every  wt)rd  appears  to  have  been  weighed  with  the  utmost 
deliberation,  and  its  torce  and  elFect  seem  to  have  been  fully  iniderstood  by 
the  men  who  framed  it.  Applying  this  principle  to  the  provisions  of  the 
constitution  aljove  (juoted,  it  is  evident  that  the  words  employed  in  sec'^ions 
7  and  12  of  the  bill  of  rights  were  not  intended  to  be  abrogated  by  the  pro- 
vision that  the  legislature,  in  cases  of  petit  larcenj',  etc.,  may  dispense  with 
an  inrpiest  of  a  grand  jury,  and  niaj'  authorize  prosecutions  before  justices 
of  the  peace,  etc.  To  the  impartial  legal  mind  it  must  seem  evident  that 
the  first  ]>rovisions  relate  to  the  trial  of  the  accused,  wliether  jjrosecuted 
upon  indictment  or  information,  and  that  the  other  provision  relates  merely 
to  the  nutde  in  which  such  prosecutious  may  be  instituted;  that  is,  in 
petty  olTenses  the  legislature  may  dispense  with  an  incjuest  of  a  grand  jury, 
and,  in  that  t-vent,  it  may  authorize  prosecutions  to  be  instituted  before 
justices  of  the  i)eace,  or  other  inferior  courts,  by  complaint  made  under 
oath  by  a  private  individual,  or  by  information  preferred  by  the  public 
prosecutor,  or  in  such  manner  as  may  be  provided  by  law.  Even  in  Eng- 
land, wliere  the  rights  of  the  subject  are  not  so  scrupulously  gnardcd  by 
constitutional  provisions  as  in  this  country,  it  is  said  that  no  right  is  more 
fundamental  than  that  of  an  open  trial  by  a  petit  jury  for  crimes;  so  that, 
for  example,  "  wherever  an  act  of  ])arliament  makes  an  olfense,  and  is 
silent  in  the  manner  of  trying  it,  it  shall  be  intended  to  be  a  trial  jwr  pain, 
according  to  Magna  Cluu'ta."  Jiiy.  v.  Stiirnei/,  7  Mod.,  !)i).  The  same  rule 
of  constnu'tion  applies  to  constitutional  provisions  which  aj)plies  to  the 
construction  of  statutes  and  acts  of  i)arliainent.  Mr.  Dwarris  lays  it  down 
as  a  fundamental  rule,  that  "  upon  all  acts  of  jiarliament  such  construction 
should  be  made  as  that  one  clause  shvVulvl  not  frustrate  and  destroy,  but,  on 
the  contrary,  <'xplain  and  support,  another."  Potter's  Dwarris  on  Stat. 
Consts.,  271.  "It  may  be  laid  down  as  an  invariable  rule  that  the  law 
favors  liberty,  so  tiiat,  in  the  construction  of  the  i)enal  statute,  where  the 


m 


186 


AMERICAN  CRIMINAL  REPORTS. 


interpretation  is  dubious,  that  sense  must  be  pursued  ceteris  parilms,  which 
is  more  beneficial  to  the  subject  or  the  party  suffering.  Thus,  where  an 
act  directs  that  the  justices  sliall  commit  an  offender  to  prison  for  '  twelve 
months,'  the  justices  may  not  alter  the  words  and  commit  him  for  'a 
year ; '  for  in  this  respect  twelve  months  and  one  year  are  not  the  same,  but 
the  months  must  be  computed  at  twenty-eight  days  to  the  numth,  and  not 
as  calendar  months,  unless  it  be  so  expressed  in  the  act."    Id.,  279. 

In  probably  all  the  states  there  are  provisions  in  tJie  state  constitutions 
corresponding  more  or  less  in  their  terms  to  those  in  the  constitution  of 
Mississippi.  Under  the  peculiar  phraseology  of  some  of  these  constitutional 
provisions  it  has  been  held  that  if  a  statute  provides  for  a  trial  to  be  con- 
ducted without  a  jury,  and  authorizes  an  appeal  and  provides  for  a  jury 
trial  of  the  cause  upon  the  apjieal,  it  does  not  violate  the  constitution  by 
reason  of  its  merely  erecting  this  vestibule  through  which  the  parties  may 
enter  to  find  the  jury  beyond.  We  think  that  such  a  construction  is  not 
only  a  departure  from  the  plain  language  of  the  constitutional  provisions 
securing  to  the  accused  the  right  of  trial  by  jury,  but  is  at  wai"  witli  llie 
spirit  of  American  institutions.  If  a  man  be  accorded  the  right  of  trial  l)y 
jury,  of  wliat  avail  is  it  to  him  if  he  be  denied  that  right  in  the  court  wbiili 
has  original  jurisdiction  of  the  causeV  Every  constitutional  provision  guar- 
antying to  tlie  accused  the  right  of  trial  by  jury  means  the  right  of  trial  in 
the  court  liaving  jurisdiction  of  the  cause,  if  it  means  anything.  For  in 
almost  every  constitution  of  every  state  in  the  Union  a  provision  is  found 
securing  to  the  defendant  in  criminal  and  civil  proceedings  the  right  of  ap- 
peal. To  deny  the  right  of  trial  by  jury  to  the  accused  in  an  inferior  court 
having  original  jurisdiction  of  the  cause  wouk'  serve  in  many  instances  as 
a  virtual,  if  not  an  absolute,  denial  of  one  of  the  most  sacred  rights  inlier- 
ent  in  the  people. 

The  bill  of  rights  of  Mississippi  provides  that  "the  enumeration  of  rights 
in  this  constitution  sliall  not  be  construed  to  tleny  or  impair  others  retained 
by  it  and  iidicreiit  in  the  people."  The  meaning  of  a  provision  of  this  kind 
is  easier  to  imagine  than  to  define.  It  would  seem  that  the  pegple  of  tiiat 
state  have  retained  certain  powers  wliich  are  above  the  constitution —  pow- 
ers which  are  ceitainly  al»ove  the  legislature,  the  executive  and  the  courts. 
That  power  may  be  said  to  be  an  indefinable  something  —  a  iif>wer  iniieri  lit 
in  the  people  which  they  have  never  surrendered  to  the  government  or  any 
of  its  departments.  Mr.  Justice  Milh-r,  seeking  to  find  an  exposition  for 
such  a  power  in  Loan  AttNociatioii  i:  Topika,  'M  Wall.,  055,  uses  the  follow- 
ing language :  "  It  must  be  conceded  tiiat  there  are  such  rights  in  every  fne 
government  beyond  the  control  of  tlie  state.  A  government  wliich  recog- 
nizes no  sudi  rights,  which  liohls  the  lives,  the  liberty  and  the  property  of 
its  citizens  sid)jet  t  at  all  times  to  the  absolute  disjiosition  and  unlimited 
control  of  even  the  most  democratic  depository  of  jK)wer,  is  after  all  but  a 
despotisn\.  It  is  true  it  is  a  despotism  of  the  many,  of  the  majority,  if  you 
choose  to  call  it  so,  but  it  is  none  the  less  a  despotism.  It  may  w»'Il  be 
doubted  if  a  man  is  to  hold  all  that  he  is  accustomed  to  call  bis  own,  all  in 
which  he  has  placed  his  happiness,  and  the  security  of  which  is  essential  to 
that  happiness,  under  the  unlimited  <lominion  of  others,  whether  it  is  not 
wiser  that  this  power  should  be  exeicised  by  one  man  than  by  many. 
"The  theory  of  our  governments,  state  and  national,  is  opposed  to  the 


deposit  of 
the  judicia 
powers, 
sential  Uc'it 
rights,  witl 
spected  l)y 
Bnll,  3  Dal 
fence  of  a ' 
though  its  i 
fundament 
power  will 
the  very  ni 
be  com] tell 
irhivh  the  , 
cannot  do 
ciples  in  o\ 
rule  an  ap 
manifest  ii 
Bonal  Hbei 
was  establ 
"A  few 
law  that  p 
act  which 
styoys  or  i 
a  man  a  ji 
gives  it  to 
legislature 
have  done 
or  j)un(.s/i 
private  co 
Chief  Ji 
well  be  d( 
prescribe 
of  giving 
stitution 
stated." 
provides : 
without  < 
which  hii 
jury.    Tl 
been  con 
the  state 
adopttnl, 
against 
states. 
shall  abi 
nor  shal 
due  proc 
:!93,  disc 
uf  thela 


EX  PARTE  WOOTEN. 


187 


deposit  of  unlimited  power  anywhere.  The  executive,  the  legislative  and 
the  judicial  branches  of  these  governments  are  all  of  limited  and  dt^flned 
powers.  There  are  limitations  on  such  power  which  gi'ow  out  of  the  es- 
sential nature  of  all  free  government — implied  reservations  of  individual 
rights,  without  wiiich  the  social  compact  could  not  exist,  and  which  are  re- 
spected by  all  governments  entitled  to  the  name."  In  Calder  and  wife  v. 
Bull,  3  DallJis,  386,  Judge  Chase  says:  "  I  cannot  8ul)8cribe  to  the  onniipo- 
tence  of  a  state  legislature,  or  that  it  is  absolute  and  without  control,  al- 
though its  authority  should  not  be  expressly  restrained  by  the  constitution  or 
fundamental  law  of  the  state.  .  .  .  The  nature  and  ends  of  legislative 
power  will  limit  the  exercise  of  it.  This  fundamental  principle  flows  from 
tlie  very  natiue  of  our  free  republican  governments  —  that  no  nmn  should 
be  conijtelled  to  do  what  the  laws  do  not  retjuire,  nor  to  refrain  from  acts 
vh  ich  the  lavs  pei-mit.  There  are  acts  which  the  federal  or  state  legislature 
caiuiot  do  witiiout  exceeding  their  authority.  There  are  certain  vital  jnin- 
ciples  in  our  free  republican  governments  which  will  determine  and  over- 
rule an  apparent  and  flagrant  abuse  of  legislative  power;  as  to  autiiorize 
manifest  injustice  by  positive  law,  or  to  take  away  that  security  for  per- 
sonal liberty  or  private  property  for  the  jirotection  whereof  government 
was  established.     .     .    . 

"A  few  instances,"  he  adds,  "will  suffice  to  explain  what  I  mean.  A 
law  th.at  punishes  a  citizen  for  an  innocent  action,  or,  in  other  words,  for  an 
act  which,  when  done,  was  in  violation  of  no  existing  law  —  a  law  that  de- 
stroys or  inqjairs  the  lawful  private  contracts  of  citizens  —  a  law  tliiit  makes . 
a  man  a  Judge  in  his  own  cause,  or  a  law  that  takes  propertijfroin  A.  and 
gives  it  to  B.  It  is  against  all  reason  and  justice  for  a  peopk'  to  intrust  a 
legislature  with  such  powers,  and  tlierefore  it  cannot  be  presumed  tliat  tiiey 
have  done  it.  .  .  .  The  legislature  cannot  change  innocence  into  guilt, 
orjmnish  innocence  as  a  crime,  or  violate  the  right  of  antecedent  la uful 
private  contract  or  the  right  of  private  property  " 

Chief  Justice  Marshall  says  in  i<'/i'fe/ier  v.  Peck,  6  Cranch,  i:r>:  "It  may 
well  be  doubtetl  whether  the  nature  of  society  and  of  government  does  not 
prescribe  some  limits  to  the  legislative  ])ower.  .  .  .  How  far  the  power 
of  giving  the  law  may  involve  every  other  power,  in  cases  where  tlic  con- 
stitution is  silent,  never  has  been,  and  perhaps  never  can  be.  definitely 
stated."  The  fifth  amendment  to  the  constitution  of  the  Unitei'  States 
provides:  "No  person  shall,  etc.,  be  depri\ed  of  life,  lilierty  or  proi)erty 
without  duo  process  of  law"  —  a  provision  taken  from  Magna  Ch:uta.  and 
which  has  been  uniforndy  held  to  comprehend  in  its  meaning  a  trial  by 
jmy.  The  provisions  of  the  constitution  of  the  United  States  iiave  ahviiys 
been  construed  as  l)inding  only  upon  the  federal  government  and  nutu|)on 
the  states.  But  in  18G7  the  fourteenth  amendineiit  to  the  constitution  was 
adoptcnl,  which  extends  this  protection  in  the  broadest  terms,  not  only  as 
against  the  fe<leral  government,  but  the  governments  of  tlii'  respective 
states.  It  is  provided;  "  No  state  shall  make  or  enforce  any  law  wliich 
shall  abridge  tlie  privileges  or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  state  (le[)rive  any  person  of  life,  liberty  or  property  without 
due  process  of  law."  Conistock,  J.,  in  Wynehamer  v.  The  People,  13  N.  Y., 
303,  discussing  the  meaning  of  tlie  wonls  "  due  process  of  law"  and  "  law 
of  the  land,"  says :  "  No  doubt,  it  seems  to  me,  can  be  admitted  of  the  mean- 


i 


A 


*ji 


f- 

1 

188 


AMERICAN  CRIMINAL  REPORTS. 


ing  of  these  provisions.  To  say,  as  has  been  suggested,  that  '  the  law  of 
the  land '  or  '  due  process  of  law '  may  mean  the  very  act  of  le;rislation 
wliich  deprives  the  citizen  of  his  rights,  privileges  or  proporty,  leads  to  a 
simple  absurdity.  The  constitution  would  then  mean  that  no  person  shall 
be  dei)rived  of  his  property  or  rights,  unless  the  legislature  shall  j'ass  a  law 
to  effectuate  the  wrong,  and  this  would  l)e  throwing  the  restraint  cntiri'ly 
away.  The  true  interpretation  of  these  constitutional  phrases  is,  that  wlure 
rights  are  acquired  by  the  citizen  under  the  existing  law,  there  is  no  power 
in  any  branch  of  the  government  to  take  them  away;  but  where  they  an.' 
held  contrarj'  to  the  existing  law,  or  are  forfeited  by  its  violation,  then  th'  y 
may  be  taken  from  him  —  not  by  any  .act  of  the  legislatiu-e,  but  in  the  due 
adniinistr.ition  of  the  law  itself  before  the  judicial  tribunals  <il'  the  state. 
The  cause  or  occasion  for  depriving  the  citizen  of  his  supi)<)sed  ligiits  nm-t 
be  found  in  the  law  as  it  is,  or,  at  h-ast.  it  cannot  be  created  by  a  legislative 
act  which  aims  at  their  destruction.  Where  rights  of  property  are  adiuitn  d 
to  exist  the  legislature  cannot  say  they  shall  exist  no  longer:  nor  will  it 
make  any  difference  that  a  process  and  a  tribunal  iire  appointed  to  exeruie 
the  sentence.  If  thLs  is  the  'law  of  the  land 'and  'due  process  of  law,' 
within  the  meaning  of  the  constitution,  then  the  ligislatinv  is  onniijiotent. 
It  may,  under  the  same  interpretation,  pa.ss  a  law  to  take  away  liiierty  or 
life  without  a  pre-existing  cause,  ai)pointing  Judici.al  and  executive  agencies 
to  execute  its  will.  Property  is  placed  by  the  constitution  in  the  same  cat- 
egory with  lil)erty  and  life. 

"  Clear  as  this  matter  stands  upon  principle,  it  is  e(|ually  well  settled  by 
authority.  Chief  Justice  (xibson,  of  Pennsylvania,  speaking  of  a  sitiiilar 
clause  in  the  constitution  of  that  state,  and  of  the  right  of  property  as  jiro- 
tected  by  it,  says :  '  What  law?  Undoubtedly  a  pre-existing  rule  of  conduct, 
J^ot  an  ex  jmsf  facto  rescnpt  or  decree  made  for  the  occasion.  The  design 
of  the  convention  was  to  excliuh'  arbitrary  power  from  every  braiwh  of  the 
government;  and  there  would  be  no  exclusion  of  it  if  siu-h  rescripts  or  de- 
crees were  to  take  effect  in  the  form  of  a  statute.  The  right  of  [)roperty  has 
no  foundation  or  security  but  the  law;  .and  when  the  legislature  shall  suc- 
cessfidly  attempt  to  overturn  it,  even  in  a  single  instance,  the  liberty  of  the 
citizen  is  no  more.'  Norman  r,  Iliist,  5  Watts  &  Werg.,  19;<.  And  Chief 
Justice  Bronson,  of  this  stiite,  in  Taylor  r.  Porter,  4  Hill.  145.  says:  'The 
words  '  law  of  the  land,'  .as  here  used,  do  not  ini'an  ii  statute  passiMl  for 
the  purpose  of  working  the  wrong.  That  construction  would  render  the  re- 
striction absolutely  nugatory,  and  turn  this  part  of  the  constitution  into 
mere  nonsense.'  Ami  again:  'The  meaning  of  the  section,  then,  seems  to 
be,  that  no  member  of  the  state  shall  be  disfranchiseil  of  any  of  his  rights 
and  privileges,  unless  the  matter  be  adjudged  .against  him  uiM)n  trial  had 
according  to  the  ccmrse  of  the  conunon  law.  It  nnist  be  ascertained  .judi- 
cially that  he  h.as  forfeited  his  privileges,  or  that  some  one  else  has  a  superior 
title  to  the  property  he  possesses,  before  i-ither  of  them  can  be  taken  from 
him.  It  cannot  be  done  by  mere  legislation."  Again  he  adds,  speaking  of 
the  words  ' due  process  of  law:'  'If  the  legislature  can  take  the  ]>roi)erty 
of  A.,  and  give  it  to  B.,  they  can  take  A.  himself  and  either  shut  him  up  in 
prison,  or  put  him  to  death.  But  none  of  these  things  can  be  done  by  mere 
legislation. " 

Chief  Justice  Rufttn,  of  North  Carolina,  in  a  very  able  and  elaborate 


judgment, 
constitutio 
the  land' 
did,  every 
gated." 


EX  PARTE  WOOTEN. 


ISO 


juilgmont,  involving  the  construction  and  forco  of  a  siniilnr  clause  in  the 
constitution  of  that  state,  laid  down  the  doctrine  that  "the  terms  'law  of 
the  land '  do  not  mean  merely  an  act  of  the  general  assembly.  If  they 
did,  every  restriction  upon  the  legislative  authority  would  be  at  once  abro- 
gated." And  he  adds:  "In  reference  to  the  intliction  of  punishment  and 
divesting  of  the  rights  of  projjorty,  it  has  been  repeatedly  held  in  this  state, 
and,  it  is  believed,  in  every  state  in  the  Union,  that  there  are  limitations 
ujion  the  legislative  power,  notwithstanding  those  words;  and  that  the 
clause  itself  means  that  sucii  legislative  acts  as  profess,  in  themselves,  di- 
rectly to  punish  jiersons,  or  to  dejjrive  the  citizen  of  his  jirojierty  without 
trial  before  the  judicial  tribunals  and  a  decision  upon  the  matter  of  right, 
a.s  determined  by  tlie  laws  under  which  it  vested,  iiccording  to  the  course, 
mode  and  usages  of  the  common  law  as  d«'rived  from  our  forefathers,  are 
not  effectually  '  laws  of  the  land,'  for  those  puritoses."  Hoke  v.  Henderson, 
4  Dev.,  15. 

Giiancellor  Kent,  2  C<mi.  (N.  Y.),  13,  says :  "  The  words  '  law  of  the  land,' 
as  used  originally  in  JIagna  Charta,  in  reference  to  this  subject,  are  under- 
stood to  mean  due  process  of  law,  that  is,  by  indictment  or  presentment  of 
good  and  Ijiwful  men;  'and  this,'  says  Lord  Coke,  "is  the  true  sense  and 
exj)osition  of  those  words."  The  better  and  larger  deiinition  of  due  2»'ueess 
of  law  is,  that  it  means  law  in  its  reyiilar  cuiir.se  of  adininistrittioii  through 
courts  of  justice,'^  See,  also,  Story  on  Const.,  (3(51;  10  Yerger,  ~){i;  2  Coke. 
Inst.,  45-50. 

In  Wilkinson  v.  Lehind,  3  rVters.  C5T,  Mr.  Justice  Story  says:  "Tho  fun- 
damental maxims  of  a  free  government  seem  to  re(|nire  that  the  rights  of 
personal  liberty  and  private  jtroperty  should  be  held  sacred.  At  least  no 
court  of  justice  in  this  country  would  be  warranted  in  assuming  that  the 
po\v(>r  to  violate  and  disregard  tlu'ui  —  a  power  so  repugnant  to  the  common 
principles  of  justice  and  civil  liberty  —  lurked  under  any  general  grant  of 
legislative  atithority,  or  ought  to  be  im])lied  from  any  general  exiiressions 
of  the  will  of  the  people.  The  people  ought  not  to  be  presumed  to  i>art  with 
rights  so  vital  to  their  security  and  well  being,  without  very  strong  and  di- 
rect expressions  of  such  an  intention."  A  similar  constructicm  was  given 
tliose  jnovisions  by  Chancellor  Sanford,  in  Baker  v.  The  People,  3  Cowen, 
68*5.  He  says,  "  the  power  of  the  legislature  in  the  punishment  of  crimes  is 
not  a  special  grant,  or  a  limited  authority  to  do  any  particular  thing,  or  to 
act  in  any  particular  manner.  ...  A  law  which  should  declare  it  a 
crime  to  exercise  any  fundamental  right  of  the  constitution,  as  the  right  of 
suffrage  or  the  free  exercise  of  religious  worship,  would  infringe  an  express 
rule  of  the  system,  and  would,  therefore,  not  be  within  the  general  power 
overcrhnes;  .  .  .  a  law  enacting  that  a  criminal  slumld.  as  a  punishment 
for  his  offense,  forfeit  the  right  of  trial  by  jury,  would  contravene  the  con- 
stitution, and  a  dcpiivation  of  this  right  cotdd  not  be  allowed  in  the  form  of 
a  punishment.  Any  other  right,  thus  secured  iis  universal  and  invioIal)Ie, 
must  eipially  prevail  against  the  general  power  of  the  legislature  to  select 
and  prescribe  ))unif<hments.  These  rights  are  secured  to  all;  to  criminals  as 
well  as  to  others:  and  a  (uinishment  consisting  solely  in  the  deprivation  of 
such  a  right  would  be  an  evident  infringement  of  the  constitution;  and  all 
punlslmu'tits  which  do  not  subvert  such  rules  and  rights  of  the  constitution 
are  witlun  tlie  scope  and  choice  of  the  legislative  powei." 


^h  I 


■ff-: 


IP 


u 


li'  ' 


190 


AMERICAN  CRIMINAL  REPORTS. 


It  would  be  supererogatory  to  multiply  authorities  under  this  head  with  a 
view  to  proving  that,  under  the  provisions  of  the  constitution  of  Mississippi, 
a  party  accused  of  crime  cannot  be  deprivetl  of  a  trial  by  jury  wherever  and 
whenever  accused,  unless  the  court  should  violate  every  principle  of  con- 
struction by  erecting  a  vestibule  through  whicli  he  may  enter  to  find  a  jury 
beyond.  And  this  the  court  has  no  right  to  do.  It  has  no  right  to  interpo 
late  words  nor  give  to  the  constitution  a  meaning  which  it  was  never  intended 
to  have.  The  trial  by  jury  guarantied  by  the  constitution  means  a  trial  be- 
fore any  tribiuial  having  jurisdiction  of  the  offense,  whether  that  tribunal 
be  one  of  interior  or  superior  jurisdiction. 


State  v.  Chapman. 

(33  Kan.,  134.) 

Construction  of  penal  statute  :  Escape  from  prison. 

1.  Penal  statutes  must  be  strictly  construed. 

2.  Where  a  person  is  lawfully  confined  in  a  city  prison  for  the  violation  of 

a  city  ordinance,  imder  a  judgment  rendered  by  a  police  judge,  he 
cannot  be  convicted  for  breaking  such  prison  and  escaping  therefrom, 
under  sections  179  or  183  of  tlie  act  regulating  crimes  and  punishments. 

Appeal  from  Cloud  District  Court. 

J.  W.  Sheaf  or,  county  attorney,  for  the  state. 
D.  L.  Bi'oioi  and  S.  D.  Iloutston,  for  appellee. 

HoRTON,  C.  J.  An  information  was  filed  against  the  defend- 
ant charging  that  he  had  been  convicted  before  the  police 
judge  of  the  city  of  Jamestown,  in  Cloud  county,  of  an  offense 
against  the  ordinances  of  said  city ;  that  he  had  been  sentenced 
to  pay  a  fine  and  the  costs  of  prosecution ;  that  he  had  been 
committed  to  the  city  prison  of  Jamestown  until  the  fine  and 
costs  were  paid ;  that  thereafter,  while  being  legally  confined 
in  said  city  prison,  he  unlawfully  and  feloniously  broke  the 
prison  and  escaped  therefrom.  On  motion  of  the  defendant 
the  court  quashed  the  information  upon  the  ground  that  it 
does  not  state  facts  sufficient  to  constitute  an  offense,  and  there- 
upon discharged  the  defendant.     This  ruling  is  complained  of. 

The  statute  provides : 

"  If  the  defendant  plead  or  be  found  guilty,  the  police  judge 
shall  declare  and  assess  the  punishment  and  render  judgment 
accordingly.    It  shall  be  part  of  the  judgment  that  the  de- 


STATE  I'.  CHAPaiAN. 


191 


fendant  stand  committed  to  the  city  prison  or  the  jail  of  the 
county  in  which  the  judgment  is  rendered  until  the  judgment 
is  complied  with ;  and  the  police  judge  shall  forthwith  issue  a 
mittimus  requiring  the  defendant  to  be  committed  to  the  city 
prison  or  the  jail  of  the  county  in  which  the  judgment  was 
rendered,  at  his  discretion."  Comp.  Laws  1879,  sec.  83,  ch. 
19a,  p.  199. 

The  defendant  was,  therefore,  at  the  time  of  his  escape,  law- 
fully confined  in  the  city  prison,  and  the  only  question  is 
whether  he  violated  any  section  of  the  act  relating  to  crimes 
and  punishments  in  breaking  the  prison  and  escaping  there- 
from. Counsel  on  the  part  of  the  state  say  "  that  the  infor- 
mation charged  an  offense  within  the  letter  and  spirit  of  the 
statute  as  stated  in  sections  107-187,  ch.  31,  Comp.  Laws 
1881."  lie  does  not  name  the  particular  section  under  which 
the  information  was  drawn.  An  examination  of  all  the  sec- 
tions referred  to  does  not  justify  the  conclusion.  Tiie  only 
sections  which  we  need  comment  on  are  179  and  182. 

Section  17i)  reads: 

"  If  any  person  confined  in  a  place  of  confinement  for  any 
term  less  than  for  life,  or  in  lawful  custody  going  to  the  place 
of  confinement,  shall  break  such  prison  or  custody  and  escape 
therefrom,  he  sliall,  ui)on  conviction,  be  punished  by  confine- 
ment and  hard  lab<jr  for  a  term  not  exceeding  \\\e  years,  to 
commence  at  the  expiration  of  the  original  term  of  imprison- 
ment." . 

And  section  182  reads: 

"  If  any  pei'son  confined  in  any  county  jail  upon  conviction 
for  any  criminal  offense,  or  held  in  custody  going  to  such  jail, 
shall  break  such  prison  or  custody  and  escape  therefrom,  he 
shall,  upon  conviction,  be  pimished  by  confinement  and  hard 
labor  not  exceeding  three  years,  or  in  the  county  jail  not  less 
than  six  months,  to  commence  at  the  expiration  of  the  original 
term  of  imprisonment." 

Said  section  179  cannot  apply  because  the  defendant  was 
not  sentenced  to  the  city  prison  for  any  regular  or  specified 
term,  nor  did  he  escape  going  to  the  said  prison.  Moreover,  it 
is  evident  from  the  language  of  this  section  and  the  other  sec- 
tions of  the  statute  that  it  was  not  in  the  mind  of  the  legisla- 
ture to  punish  any  one  under  said  section  for  escaping  from 


« 

'  1 

II 

hi 
-if 

i     ,    ■ 

192 


AMERICAN  CRIMINAL  REPORTS. 


prison  or  custody,  where  such  i)erson  was  committed  to  jail 
merely  for  the  non-payment  of  a  fine.  This  is  evident,  as  said 
section  concludes  as  follows: 

'•lie  shall,  upon  conviction,  be  punished  by  confinement  and 
hard  labor  for  a  term  not  exceedin*,^  live  years,  to  commence  at 
the  cqni'at'ion  of  the  orhjlual  term,  of  hitpi'ixoinaenty 

Section  182  has  reference  to  ])ersons  confined  in  a  county 
jail  or  held  in  custody  going  to  such  jail.  As  a  rule  penal 
statutes  must  be  strictly  construed,  and  they  cannot  be  ex- 
tended beyond  the  grammatical  and  natural  meaning  of  thcii- 
terms  upon  the  plea  of  failure  of  justice.  RemmuujUm  v.  State, 
1  Or.,  281;  State  v.  Lovell,  23  Iowa,  30-4;  (Jlbmn  v.  State,  38 

Ga.,  571. 

We  are  not  at  liberty  to  interpolate  into  the  statute  "  city 
prison,"  nor  can  we  judicially  determine  that  a  "  city  prison  " 
is  a  ''  county  jail."  It  is,  therefore,  our  opinion  that  the  mat- 
ters charged  in  the  information  do  not  constitute  any  otfenso 
within  the  statute.  The  omission  is  one  for  whicii  the  legisla- 
ture is  responsible.  It  is  probably  a  caum  om,if<HUs,  which  the 
legislature  may,  but  the  court  cannot,  supply. 

The  order  and  judgment  of  the  district  court  must  be 
affirmed. 

Yalentink,  J.,  concurring. 

Johnston,  J.,  not  sitting  in  the  case. 


Shekwin  v.  Peoplb. 

(100  N.  Y.,  351.) 
CONTKMIT. 


Punishment  for  disobedif.nck  to  suBprENA.— To  justify  punisliinent 
by  indictment  for  disobedience  to  subpcpna,  ns  in  tlie  case  of  a  criminal 
contempt,  the  mandate,  process  or  order  disobeyed  must  have  been 
lawfully  issued  by  a  court  of  lecord  didy  organized ;  and  tliis  does  not 
include  a  subpoena  issued  by  a  district  attorney  in  a  criminal  case,  for 
this  is  punishable,  as  in  a  civil  action,  under  another  statute  than  tliat 
specifying  the  penalty  for  criminal  contempt.  Such  indictment, 
founded  on  a  refusal  to  appear  on  a  subpoena  of  a  district  attorney,  is 


insnffi 
or  aft( 
3.  Pl'NISI' 
person 
appUc 

iV.  a 

VilhhVM 

for  conte 
attorney 
guilty  to 
was  scute 
tion  now 
If  the  in 
offense,  i: 
t'octive  in 
sustain  a 
after  a  p 
provision 
"every  \ 
enumera 
])art  of  t 
for  as  a 
as  heroi 
this  ])ro 
indictmc 
act  whic 
statute  ( 
tempt  \N 
tion  10 
shall  ha 
guilty  c 
(Subd. 
fully  isi 
and  15 
inflictc' 
section 
The 
can  on 


SHERWIN  V.  PEOPLE. 


193 


insnffltiont  to  sustain  a  verdict  of  guilty,  or  a  sentence  after  conviction 
or  aft<'r  a  jilca  of  Riiilty. 
2.  Pi'MSi'MKNT  roll  civir,  coNTEMiT. — Tlio  )»roper  mode  oi  punishing  a 
pt>r.son  for  refusing  to  olxty  tlie  Hubp(x>na  of  a  district  attorney  is  by  an 
ai)plication  to  the  court,  upon  notice  to  tlie  party, 

77iofi.  IT.  KImiII,  U)r  apiK.'llant. 
N.  C.  J/ool;  ft)r  respuiuluiit. 

MiLLKK,  J.  The  defendant  was  convicted  on  an  indictment 
for  contempt  in  diiioi)eyin^'  a  suhpivna  issued  by  the  district 
attorney  of  Alljany  county  in  a  criminal  case,  and  he  pleaded 
iruiltv  to  two  other  indictments  of  the  same  character.  lie 
was  sentenced  for  each  of  tiie  oU'enses  charj^^ed.  and  the  (jues- 
tion  now  presented  involves  the  validity  of  these  indictments. 
If  the  indictments  did  not  impute  to  the  defendant  a  criminal 
offenpc,  in  violation  of  the  statutes  of  this  state  (and  were  de- 
fective in  charo'in^  such  olTense),  then  they  are  insuificient  to 
sustain  a  verdict  of  guilty,  or  a  sentence  after  conviction  or 
after  a  plea  of  guilty.  The  indictments  are  founded  upon  the 
provisions  contained  in  2  K.  S.,  <!l>2.  g  14,  which  declare  that 
"every  person  who  shall  he  guilty  of  any  criminal  contempt 
enumerated  in  the  sec(md  title  of  the  third  chapter  of  the  third 
part  of  the  Revised  Statutes  shall  l)e  liable  to  indictment  there- 
for as  a  misdemeanor,  and,  upon  conviction,  shall  be  punished 
as  hereinaft(!r  prescribed."'  To  make  out  an  oifense  within 
this  provision,  and  sustain  a  conviction  under  the  same,  the 
indictment  must  charge  that  thi;  defemiant  was  guilty  of  some 
act  which  constituted  a  criminal  contemj)t  in  violation  of  the 
statute  cited.  Tiu'  (»nly  acts  which  constitute  a  criminal  con- 
tenijjt  within  the  j)r()visions  of  section  Hare  specified  in  sec- 
tion 10  of  2  II.  S..  27S,  which  declares,  "every  court  of  record 
shall  have  ])ower  to  punish  as  for  a  criminal  contempt  persons 
guilty  of  either  of  the  following  acts,  and  no  others:  .  .  . 
(Subd.  3.)  Wilful  disobedi<.'nc(.'  of  any  ])rocess  or  order  law- 
fully issued  or  made  by  it."  The  sidjsequent  sections  (11,  12 
and  15)  make  jirovision  in  refei-ence  to  the  punishment  to  be 
inflicted  in  case  of  a  violation  of  the  provisions  of  the  tenth 
section. 

The  charge  made  in  the  indictments  against  the  defendant 
can  only  rest  upon  subdivision  3  of  section  10,  above  quoted; 
Vol.  V  — 13 


'H 


m 

PI 
w 


m 


(' 


rji 


194 


AMERICAN  CRIMINAL  REPORTS. 


and,  ii  order  to  sustain  the  indictments,  a  case  must  be  made 
out  witiiin  the  langaa*,'e  and  meanin<^  of  that  subdivision,  and 
there  must  be  a  wilful  disobedience  of  a  i)rocoss  or  order  law- 
fully issued  or  made  by  the  court  in  the  exercise  of  its  Ic^al 
authority.  The  court  alone  can  issue  the  process  oi-  make  tlie 
order  a  violation  of  wliicii  constitutes  tl;o  contempt,  and  it 
cannot  lawfully  be  issued  or  made  by  any  intermediate  autlior- 
ity.  It  was  evidently  intended  by  the  statute  that  the  con- 
tempt which  was  the  subject  of  condemnation  and  punishment 
should  be  a  matter  of  (!onsiderati<jn  by  the  court  itself,  and 
that  it  should  pronounce  judf^ment  as  to  its  character  and  the 
punishment  that  shonUl  be  inflicted. 

Each  of  the  indictments  aj^ainst  the  defendant;  among  other 
things,  alleges  that  the  writ  of  sul)poena  was  duly  and  lawfully 
issued  by  the  district  attorney,  and  tested  in  the  name  of  a  jus- 
tice of  tiie  supreme  court,  and  directed  to  the  defendant,  com- 
manding him  to  appear  at  a  court  of  o3^er  and  terminer  at  a 
time  specilied;  that  it  was  lawfully  served  on  the  defendant; 
and  that  he  was  notified  to  ai)pear  and  give  evidence  acconbng 
to  the  exigency  of  the  writ,  and  that  he  failed  to  do  so.  There 
is  no  allegation  that  any  ]>i'ocess  or  order  was  lawfully  issued 
or  made  by  any  court  of  record ;  and  although  it  is  stated  to  be 
a  writ  issued  by  the  people,  such  statement  does  not  necessarily 
establish  it  as  a  process  or  order  issued  or  made  by  a  court  of 
record.  The  allegations  in  the  indictment  that  it  was  called  a 
subpoena,  and  that  it  was  lawfully  tested  and  issued  by  a  justic<; 
of  tlie  supreme  court,  did  bu*^.  make  it  a  process  or  order  lawfully 
issued  or  made  by  any  court  of  record.  Something  more  was 
required  to  bring  it  within  the  statute.  It  should  have  been 
made  to  appear  that  a  court  of  recor<l  duly  organized  had 
issued  the  process  or  made  the  order  which  was  disobeyed.  It 
will  be  observetl  that  section  10,  subdivision  3,  instead  of  de- 
clai'ing  that  a  wilful  disobedience  of  any  order  or  process  of  the 
court  can  be  punished  as  a  criminal  contempt,  defines  the 
process  or  order  wliieh  cannot  be  disobeyed,  without  subjecting 
the  i)arty  to  indictment  foi'  a  misdemeanor,  by  the  use  of  the 
terms  "lawfully  issued  or  nuide  by  it;"  thus  indicating  an 
intention  to  include  only  such  process  or  order  as  was  expressly 
directed  by  the  court  itself  Avhile  acting  officially  in  the  dis- 
charge of  its  functions.    Courts  of  oyer  and  terminer  have 


power  to 
(loscribed 
preine  cou 
how  such  J 
order  niad< 
is  higidy  p 
brace  a  ca 
fully  issuet 
that  purpc 
The  alle« 
issued  by  t 
that  it  was 
which  was 
^§  <;;?,  (U,  \ 
to  issue  sul 
The  ])roces 
and  the  co 
It  is  nowh( 
question  v 
court  of  re 
by  indictm 
meaning  o 
contempt  i 
it  should  t 
obedience 
tinct  and  ( 
of  i-ecord 
In  J'c'oj 
jiunishmei 
order  dis( 
some  com 
Davis,  J., 
court  of  r 
be  applic 
(Jilbert,  J 
izing  the 
and  limit 
w«,  09  N 
already  e 
of  the  sU 


SHERWIN  r.  PEOPLE. 


105 


power  to  issue  subpccnas  (2  R.  S.,  27G,  §  1),  but  the  subprona 
(loscril)C(l  purports  to  bo  issued  eitiior  by  a  justice  of  the  su- 
premo court  or  by  tlie  district  attorney.  li;  is  ditficult  to  see 
iiow  sucli  a  process  can  be  regarded  as  issuing  ''vom,  or  as  an 
order  UMulo  by,  any  court  of  record.  Section  1(>,  subdivision  3, 
is  liigiily  penal  in  its  character,  and  cannot  well  be  said  to  em- 
brace a  case  where  the  process  or  order  was  not  in  fact  law- 
fully issued  or  made  by  a  court  of  record  duly  constituted  for 
that  purpose. 

The  allegation  in  the  indictment  that  the  process  was  duly 
issued  by  the  district  attorney  is  inconsistent  with  the  position 
that  it  was  issued  by  a  court  of  record.  The  writ  of  subpoena 
which  was  issued  was  expressly  authorized  by  2  R.  S.,  729, 
§^  <;;?.  <i4,  where  power  is  conferred  upon  the  district  attorney 
to  issue  subpcx'uas  for  witnesses  in  the  i)recise  form  alleged. 
The  process  was  a  subpa^na  issued  by  the  district  attorney  alone, 
and  the  court  took  nc  part  in  his  olHcial  act  in  this  respect. 
It  is  nowhere  alleged  in  the  indictment  that  the  subpoena  in 
question  was  a  process  lawfully  issued  by  the  order  of  any 
court  of  record.  Without  this  there  was  no  ])ower  to  punish 
by  indictment  for  a  criminal  contempt  within  tiio  language  and 
meaning  of  the  statute.  To  sustain  a  charge  for  a  criminal 
contempt  under  section  10,  and  an  indictment  under  section  14, 
it  should  be  averred  and  made  to  appear  that  the  wilful  dis- 
obedience alleged  was,  within  the  terms  of  the  statute,  a  dis- 
tinct and  clear  disobedience  of  the  process  or  order  of  the  court 
of  record  stsited  in  the  indictment. 

In  People  v.  (I'dmore,  2(5  Ilun,  1,  it  was  held  that  to  warrant 
punishment  as  for  a  criminal  contempt  the  mandate,  process  or 
order  disobeyed  must  have  been  lawfully  issued  or  made  by 
some  court  of  record  as  such ;  and  it  was  said  in  the  opinion  by 
Davis,  J.,  that  if  not  so  issued  by  a  court  of  record  as  such 
court  of  record,  then  another  and  quite  different  statute  would 
be  applicable  to  the  case.  In  People  v.  Riley,  25  Hun.  587, 
(filbert,  J.,  says:  "There  exists  no  undefined  power  author- 
izing the  commitment  of  citizens  for  contempt  in  cases  defined 
and  limited  by  statute."  See,  also,  Matter  of  Watson  v.  Nelr 
wn,  GO  N.  Y.,  537;  O'Gam  v.  Kearney,  Ti  id.,  423.  The  views 
already  expressed  are  also  sup})orted  by  the  notes  of  the  revisers 
of  the  statutes,  and  the  other  provisions  of  the  statutes  in  re- 


V 


n^ 


11)0 


AMERICAN  CRIMINAL  REPORTS. 


giml  to  contempts  which  are  not  criminal.  In  their  notes  on 
section  10  (T*  E<hn.,  420)  the  revisers  say:  "A  solid  and  obvious 
distinction  exists  between  contempts,  strictly  such,  and  tlioso 
otfenses  which  ^'o  by  that  name,  but  which  are  punished  as  cnn- 
tonipt^s  only  for  the  purpose  of  enforcing  some  civil  remedy. 
This  distinction  has  l)een  observed,  and  the  former  are  intendtMJ 
to  be  included  in  tiie  precediuf?  sections.  The  latter  class  are 
treated  of  subsecpiently,  among  miscellaneous  proceedings  in 
civil  cases." 

From  these  remarks  it  is  (piite  obvious  that  the  contempts 
wliicli  are  subsequently  ])rovi<le(l  for  among  miscellaneous  pro- 
coedinffs  in  civil  cases  were  not  inteniled  to  be  included  auinn<r 
criminal  contempts.  It  follows  that  the  framcrs  of  the  statute 
never  intended  that  the  disobedience  of  a  subpoena  in  civil  cases 
should  be  regarded  as  a  criminal  contempt.  The  provision  of 
section  20  (2  R.  S..  r>;{S).  declaring  that  ''  persons  proceeded 
against,  according  to  the  provisi(tiisof  th's  title,  shall,  notwith- 
standing, be  liable  to  indictment  for  the  same  misconduct,  if  it 
be  an  indictable  offense,"  is  not  in  conflict  with  the  position 
last  stated.  This  section  merely  recognizes  the  fact  that  there 
may  be  some  ))rovision  of  the  statute  which  makes  one  or  more 
of  the  simple  contempts  a  crime,  but  it  does  not  sanction  the 
idea  that  disobedience  of  a  subpcena  is  a  criminal  contempt,  in- 
<lictable  as  a  misdemeanor  under  the  statute  which  declares  such 
contempts  to  be  misdemeanors.  The  distinction  made  by  the 
revisers  is'repeated  in  their  note  to  title  1 3,  chapter  8,  of  part  3  of 
the  Revised  Statutes  (.5  Edm.,  .502),  entitled  "Of  proceedings  as 
for  contempts,  to  enforce  civil  remedies,  and  to  protect  tlio 
rights  of  parties  in  civil  actions."  After  having  pointed  oat 
the  distinction  Ijetween  contempts  which  are  really  such,  and 
those  which  are  treated  as  contempts  for  the  mere  purpose  of 
enforcing  .some  civil  remcdv,  thev  say  the  former  class  has  been 
provided  for.  "  It  is  the  object  of  this  title  to  provide  for  the 
latter  class."  As  provision  is  made  in  the  title  to  which  this  note 
is  appended  to  punish  the  failure  to  obey  a  subpoena,  there 
would  seem  to  be  no  question  that  tlie  revisers  did  not  intend 
to  make  the  disobedience  of  a  subpa?na  a  criminal  contempt. 

Independent  of  the  provisions  of  the  statute  in  regard  to 
criminal  contempts,  there  are  other  enactments  relating  to  the 
disobedience  of  subpoenas  issued  by  an  attorney  in  civil  actions, 


or  county  c 
dciine  the 
siil)j*'cts  hi 
others  at  la 
intended  t 
utos  are  co 
tout  ion  of 
and  that  tl 
sidored  as 
a  wilful  di 
issued  by  ; 
must  be  ex 
those  i»laiu 
cases,  as  w 
statute  in  i 
their  atteu 
of  their  su 
ance,  and  t 
toinpt  of  1 
criminal  o 
so  declared 
between  a 
Statutes, 
language 
wise,  that 
and  ampl« 
enumerati 
the  previo 
alty  arisii 
A  furt! 
tempts  in 
dies  and  1 
which  ar 
for  refusi 

the  two  ( 
for  a  crii 
and  an  i 
(section 
was  indi( 


SHERWIN  V.  PEOPLE. 


197 


or  county  clerk  or  district  attorney  in  criminal  cases,  wliicli 
dctliie  tlie  penalties  to  which  a  default in^Mvitness  in  such  cases 
siibjt'cls  himself;  and  such  penalties  hein;,'  <lesi<,'nated,  and  no 
others  attached  to  the  same,  they  must  he  re^'arded  as  alone 
intended  to  ho  inllicted.  The  exjjlicit  provisicms  of  these  stat- 
utes are  controlling,'  and  conclusive,  and  clearly  indicate  the  in- 
t(Miti<>u  of  the  law-makers  to  provide  specially  for  such  cases. 
and  that  thev  should  not,  hv  anv  rule  of  construction,  hi;  con- 
sidered  as  embraced  within  the  provisions  of  law  in  regard  to 
a  wilful  disobedience  of  an  order  or  pnjcess  lawfully  made  or 
issued  by  a  competent  court.  All  other  provisions,  therefore, 
must  be  excluded,  and  the  penalty  incurred  must  be  limited  to 
tiiose  plain  enactments,  which  furnish  amjile  remedies  in  such 
cases,  as  will  be  seen  from  an  examination  of  the  same.  The 
statute  in  regard  to  witnesses,  theii'  privileges,  and  compelling 
tlieir  attendance  (2  R.  S.,  400,  ^  42),  after  providing  the  mode 
of  their  subpiena  pivscribcs  (;?  4;j)  the  jjcnalties  for  non-attend- 
ance, and  among  tlujse  is,  he  "shall  be  deemed  guilty  of  a  con- 
tempt of  the  c(»urt  out  of  which  such  sidtptena  issued."  If  a 
criminal  contempt  was  intended,  it  would  no  doubt  have  been 
so  declared,  for  there  is  a  mai-ked  diU'erence,  as  we  have  seen, 
between  a  simple  and  a  ci'iminal  contem[)t  under  the  Revised 
Statutes.  It  is  a  reasonable  ai\d  fair  intendment  from  the 
language  employed,  and  from  the  omission  to  declare  other- 
wise, that  it  was  the  intention  of  the  legislature  to  make  full 
and  ample  provision  for  a  contem[)t  committed  in  the  cases 
enumerated,  and  it  would  bo  going  very  far  to  hold  that  under 
the  previous  jirovision  a  party  could  be  subjected  to  the  pen- 
alty arising  fron\  a  criminal  contempt. 

A  further  provision  is  made  for  the  ))unishment  of  con- 
tempts in  proceedings  as  for  contempts  to  enforce  civil  reme- 
dies and  to  protect  the  rights  of  parties  in  civil  actions,  among 
which  are  enumerated,  "  all  persons  summoned  as  witnesses 
for  refusing  or  neglcctirg  to  obey  such  summons."  2  R.  S., 
t)'.)'),  ^  I,  subd.  5.  The  distinction  is  thus  maintained  between 
the  two  classes  of  contempts.  The  ]>unishment  on  conviction 
for  a  criminal  contempt  was  (2  R.  S.,  27!S,  §  11)  a  line  of  $250 
and  an  imi)risonment  for  thirty  days.  Such  conviction  was 
(section  1.5)  no  bar  to  an  indictment  for  the  same  offense,  if  it 
was  indictable,  but  the  court,  in  passing  sentence,  were  to  take 


198 


AMERICAN  CRIMINAL  REPORTS. 


into  consideration  the  punishment  previously  inflicted.  Soction 
14,  as  we  have  seen,  provides  that  a  person  guilty  of  any  crim- 
inal contempt  named  in  section  10,  Ki/jrra,  shall  be  liable  to  in- 
dictment for  the  same  as  a  misdemeanor,  and  puiyslied  as 
thereinafter  prescriljed,  and  by  section  -10  (2  R.  S.,  C!)7)  such 
punishment  was  by  imprisonment  in  a  county  jail  not  exceeding 
one  year,  or  by  line  not  exceeding  $250,  or  b}'  both.  It  is  not 
to  be  supposed  tliat  it  was  intended  to  embrace  in  the  imnisli- 
ment  prescribed  the  failure  to  obey  the  subpoena  issued  by  a 
district  attorney  in  a  criminal  case,  or  by  an  attorney  in  a  civil 
action. 

Aside,  however,  from  the  statutes  to  which  reference  has 
been  had,  the  question  considered  is,  we  think,  fully  settled  and 
disposed  of  by  the  provision  contained  in  section  64  of  ai'ticlo 
2,  title  4,  chapter  4,  part  4  of  tlie  Revised  Statutes,  wliicli  is 
entitled  "  Of  indictments  antl  proceedings  thereon."  Tliis  soc- 
tion fully  prescribes  the  penalty  for  wilfully  neglecting  to  obey 
a  subpoena  issued  by  a  district  attorney  in  a  criminal  case,  and 
settles  definitely  any  doubt  Avhich  might  possibly  arise  upon 
the  question  whether  a  criminal  contempt  had  been  committed. 
It  declares  that  sucli  disobedience  is  to  be  "  punished  in  the  same 
manner,  and  ujiirn  like  proceedings,  as  jirovided  by  law  incases 
of  subjxenas  returnable  at  any  circuit  court;  and  the  person 
guilty  of  such  disobedience  shall  be  liable  to  the  party  at  whoso 
instance  such  subjxiMia  issued,  in  the  same  manner  and  to  the 
same  extent  as  in  cases  of  subjxenas  issued  in  any  civil  suit;" 
thus  evincini:;  unmistakablv  that  such  disobedience  of  a  district 
attorney's  subpoMia  stands  upon  ))recisely  the  same  ground  as, 
and  that  it  is  not  a  criminal  contempt  any  more  than,  refusing,' 
to  answer  a  subpo'ua  in  a  civil  case.  Ry  the  statute  to  which 
reference  has  bp(>n  had.  a  violation  of  a  subpoena  in  eith'rcaso 
I'cnders  the  witness  amenalde  to  the  same  co;>sequences  as  for 
a  simple  contempt,  to  be  i)unished  in  the  same  manner  and  to 
the  .same  extent,  and  upon  proceedings  of  the  same  character. 
In  the  face  of  an  exjjress  statute  providing  in  clear  and  unmis- 
takable language  for  the  jienalty  to  be  incurred,  there  is  no 
valid  ground  for  holding  that  other  penalties  are  to  be  inllicleil 
which  are,  at  least,  of  doubtful  application,  and  for  which  tho 
statute  itself,  under  which  they  are  sought  to  be  enforced,  does 
not  clearly  and  directly  provide. 


SHERWIN  v.  PEOPLE. 


199 


It  is  a  well  established  rule  of  law  that  statutes  which  create 
criminal  offenses  are  to  receive  a  strict  and  not  a  liVicral  con- 
struction, and  thoy  should  not  be  enlarged  by  interpretation 
beyond  their  fair  meaning  and  import.  The  multiplication  of 
offenses  by  construction  of  penal  statutes  is  in  conflict  with 
the  general  policy  of  the  law,  and  a  statutory  crime  can  only 
be  created  by  plirascology  which  is  clear,  direct  and  unques- 
tionable as  to  its  intention.  I'nless  this  is  manifest,  the  language 
employed  cannot  be  held  to  include  a  criminal  c  large.  If  anew 
criminal  offense  was  intended  to  be  created  by  section  10,  subd. 
;i,  jiiij)t'a,  it  was  oidy  when  a  competent  tribunal,  sitting  as  a 
court,  and  exercising  its  functions  as  such,  had  made  a  lawful 
order  or  directed  a  process  to  be  issued,  and  not  in  a  case  where 
the  order  could  be  imputed  to  it  by  a  mere  fiction  of  law.  The 
court  of  oyer  and  terminer,  as  originally  organized,  had  power, 
under  the  lieviscd  Statutes  (2  It.  8.,  2T<>,  §  1,  subd.  1),  to  issue 
wi'its,  including  a  subjnena,  and  original  subpoenas  of  courts  of 
record  were  reipiii'inl  to  bo  issued  under  the  seal  of  the  court 
iiiul  indorsed  by  the  attorney.  2  K.  S.,  277,  §§8,  9.  lUit  the 
provisions  in  regard  to  the  issuing  of  subpa'uas  in  ci'iminal 
cases  iU'e  spi'cial.  and  power  is  given  to  the  disti-ict  attorney,  as 
an  ollicer  under  the  law,  to  issue  subpctMias  which  are  different 
from  the  subpoMuis  originally  intended  to  be  issued  by  the 
court  of  oyer  and  tin'miner  and  under  its  seal.  By  2  li.  S.,  729, 
J;  iVo,  the  district  attorney  isauthori/.ed  to  issue  subpcrnas  without 
the  seal  of  the  court,  ami  they  are  declared  to  be  as  valid  as 
if  the  seal  of  the  e^ourt  had  been  affixed  thereto.  A  subpipua 
thus  issued  had  the  same  validity  as  if  it  had  been  signed  by 
the  clerk  and  :r;  ,ued  under  the  seal  of  the  court.  As  we  have 
already  seen,  nndei'  si>ction  (U  the  punishment  for  disol)edience 
of  a  subpd'iia  issued  by  the  district  attorney  is  tlic  sanui  as  in 
civil  cases.  It  is  thus  a])pareiit  that  it  was  not  intended  by  the 
legishiture,  in  confei-ring authority  upon  the  district  attorney  to 
issue  suli|)(rnas.  and  in  ])roviding  for  the  failure  to  obey  the 
same,  to  create  an  offense  within  the  meaning  of  section  10, 
subdivision  .'5.  .siipra,  or  to  regard  the  disobedience  of  the  same 
as  a  wilful  violation  of  an  oriler  iriade  or  a  process  issued  by 
the  court  itself.  Such  a  sidip(ena  is  not  issued  by  the  court 
itself,  or  und(n'  its  seal,  but  it  is  a  subpa>na  issued  under  the 
statute  by  an  oHiccr  of  the  court  expressly  authorized  for  that 


I 


W'r 


200 


AMERICAN  CRIMINAL  REPORTS. 


purpose.  If  the  disobedience  of  a  subpoena  issued  bv  tlio  dis- 
trict attorney  is  a  misdemeanor,  liable  to  be  punished  under 
indictment,  as  provided  by  section  14,  supra,  then  the  same  rule 
would  be  applicable  to  innumerable  cases  where  subpa?nas  are 
authorized  to  be  issued,  and  for  whicli  the  statute  has  provided, 
which  it  is  needless  to  enumerate. 

The  learned  counsel  for  the  respondent  insists  that  the  sub- 
poena in  question  was  a  process  of  the  court,  and  properly  issued 
by  the  distinct  attorney,  with  the  same  effect  as  if  issued  on  a 
si)ecial  order  of  the  court.  While,  as  a  matter  of  form  and  by 
legal  fiction,  a  subpcena  may  be  regarded  as  issuing  out  of  imd 
by  order  of  the  court,  and,  for  certain  purposes,  as  the  act  oi- 
mandate  of  the  court,  and  a  party  upon  whom  it  is  served  may 
be  compelled  to  obey  the  same,  and  upon  failure  to  do  so  be 
punished  for  disobedience  aiul  for  hiscontem])t  of  the  authority 
of  the  court,  u])on  a  proi)er  application,  after  he  has  had  full 
opportunity  to  be  heard  in  his  own  defense,  as  we  have  already 
seen,  a  subptena  thus  issued  is  neither  a  process  nor  oi"d(>r  of 
the  court  which  is  named  or  embraced  within  the  pi'ovisioiis 
of  the  .section  of  the  Revised  Statutes  already  cited.  The 
process  or  order  referred  to  is  one  which  emanates  fi-oui  the 
court,  while  sitting  as  such,  and  it  requires  something  to  be  done 
by  the  party  to  whom  it  is  issued  or  directed  which  is  within 
the  j)rovince  of  the  court  to  dinjct,  and  which  it  has  full  power 
and  authority  to  command  in  its  capacity  as  a  judicial  tribunal. 
It  does  not  include  a  process  issueil  merely  by  the  act  of  a  pub- 
lic official  without  any  direct  action  or  determination  of  the 

COUI't. 

After  a  careful  examination,  we  are  satisfied  there  is  no 
authority  for  the  doctrine  that  the  disobedience  of  a  subpo'iia 
under  our  statuti;,  or  otherwise,  is  a  ci'iiniiial  olVensi*  punishable? 
by  indictment,  and  no  adjudicated  case  uj)holds  such  a  rule. 
When  the  defendant's  case  was  presented  to  this  court  on  cer- 
tain preliminary  (juestions,  growing  out  of  his  arrest  in  the  city 
of  ^c\Y  York,  the  jjrecise  ))oint  now  uiuler  discussion  was 
neither  considered  nor  deteruiined,  and  the  decision  then  made 
is  not  an  authority  which  sustains  the  position  taken  by  the 
respondent's  counsel.  PcopJii  ex  I'd.  Sherifht  r.  JAr?//,  02  X. 
v.,  415.  W^e  may  concede  that  a  party  r(>fusing  to  obey  a 
sul^iuena,  or  in  any  way  olistructing  the  service  of  papers,  is 


STATE  V.  HASKELL. 


2Ul 


b}'  law  in  contempt ;  but  it  Ijy  no  means  follows  that  the  proper 
mode  of  })unishment  is  by  a  proceeding-  by  indictment.  The 
usual  mode  of  punishin<>'  the  offender  is  by  an  application  to 
the  court,  upon  notice,  where  the  parties  can  have;  an  oppor- 
tunity to  be  heard  and  m.ake  an  excuse,  if  any  they  have,  for 
their  conduct  in  disregarding  or  disobeying-  the  subpcena. 
Wlicther  a  wilful  contem])t  is  an  offense  punishai)le  by  indict- 
ment at  common  law  is  not  material  to  determine  in  the  case 
now  considei'ed,  as  the  (piestion  to  be  decided  de[)ends  upon 
the  interpretati(m  to  bo  given  to  the  statutory  jn'ovisions  wliich 
have  been  cited  and  which  bear  upon  the  subject. 

After  careful  consideration,  we  are  brought  to  the  conclusion 
that  neither  of  the  indictments  against  the  defendant  contains 
a  legal  charge  against  him  of  any  offense  for  which  he  could 
proi)erly  and  lawfully  be  punished,  either  for  a  ci-iminal  con- 
tempt or  a  misdemeanor.  The  result  at  w'hicli  we  have  arrived 
disposes  of  the  case,  and  renders  it  unimportant  to  examine 
and  consider  the  numerous  other  cpiestions  raised.  It  follows 
tiiat  the  conviction  had  and  the  sentences  imposed  for  offenses 
not  authorized  l»y  law  were  erroneous,  illegal  and  void.  They 
should  thei'efoi'o  be  reversed  Jind  annulled,  the  indictments 
(juashed,  and  the  defendant  discharged.  Judgment  accord- 
ingly. 

(All  concur,  except  Finch,  J.,  not  voting.) 


1 


Statu  v.  Haskell. 

(76  JliiiiKs  i$99.) 

Cruelty  to  animals:  Iiulictmcnt. 


1.  Duplicity. —  A  count  in  a  comidaint  is  not  bad  for  duplicity  localise 

it  alleges  that  tlio  dofcndant  "did  cruelly  torment,  torture,  maim,  lieat 
and  wound  his  horse,  and  de[)rive  saitl  horse  of  necessary  sustenance ;  " 
as  the  diirercnt  descriptions  of  the  offense  are  not  repugnant. 

2.  Same  —  Insui'ITCiency  op  indictmext. —  The  words  in  the  same  count, 

"Riul  the  said  defendant  diil  then  and  there  fail  to  provide  said  horse 
with  proper  food,  drink  and  slielter,"  imply  another  and  distinct  of- 
fense; but  as  it  is  not  allej^ed  tliat  the  defendant  at  tlie  time  had  "  the 
care  and  custody  "  of  the  aninud,  they  may  be  rejected  as  surplusage. 


*:  n 


i  Hlf  Itt 


202  AMERICAN  CRIMINAL  REPORTS. 

On  exceptions  from  Superior  Court. 

Win.  T.  Haines,  county  attorney,  for  the  state. 
A\  W.  Whitehouse,  for  the  defendant. 

Pktkks,  C.  J.  The  conipkint,  containing  a  single  count, 
is  demurred  to  for  duplicity.  It  is  contended  that  at  least  two 
offenses  are  set  out  in  tiie  one  count.  The  complaint  re- 
counts that  the  defendant  did,  a  horse  helonging  to  himself, 
"cruelly  and  unlawfully  ttn'ment.  tortui'e,  maim,  beat,  wound 
and  deprive  of  necessary  susttMiance."  Thus  far  the  com- 
plaint is  not  amenable  to  the  objection  alleged.  Thus  far  only 
one  offense  is  charged.  IJut  it  is  alleged  to  have  been  accom- 
plished by  different  means.  Vvooi  that  any  of  the  means 
were  used  proves  the  offeiiso.  Proof  that  all  the  means  de- 
scribed were  used  proves  no  more.  The  pen;dty  is  not  neces- 
sarily more  in  the  one  case  than  in  the  other.  State  y.  Imikj,  Oo 
^[aine,  21.5. 

The  means  alleged  should  not  be  repugnant.  It  is  objec- 
tionable to  allege  in  one  count  that  an  offense  Avas  committed 
in  two  ditferent  and  utterly  inconsistent  ways.  The  count 
should  not  charge  an  impossibility.  1  liish.  Crini.  Proc.  sec. 
430.  The  count,  so  far  as  quoted,  is  not  n'pugnant.  It  is  not 
unnatural  or  inconsistent  to  say  that  all  of  the  acts  thus  Jil- 
leged  were  done  to  the  horse  at  the  same  time. 

The  com])laint,  however,  further  recites  that  the  respondent 
did  then  and  there  "fail  to  provide  said  horse  with  proper  food, 
drink  and  shelter."'  These  words,  no  doubt,  are  employed  to 
charge  another  and  distinct  offense.  Tin;  lirst  clause  of  section 
21),  chapter  124,  lievised  Statutes,  describes  one  oU'ense,  and 
the  second  clause  another.  One  offense  implies  an  act  done; 
the  other  an  act  omitted.  One  clause  makes  any  person  liable 
to  punishment  who  crucdiy  ill-treats  an  animal  in  any  of  certain 
ways  named.  The  other  clause  makes  only  the  person  "who 
has  the  charge  and  custody "' of  the  animal  liable  for  an  un- 
necessary failure  to  provide  for  his  wants.  Coiu,.  v.  Whltmaiu 
lis  Mass.,  45S. 

The  complaint,  therefore.  Avould  bo  bad  for  duplicity  if  the 
two  offenses  were  completely  alleged.  Put  the  offense  lastly 
described  is  not  adequately  alleged.     It  lacks  the  necessary 


C03IMONWEALTH  v.  ESTE. 


203 


averment  that  tho  respondent  had  "  the  charge  and  custody  " 
of  tho  animal.  It  is  not  an  offense  to  neglect  to  feed  an  ani- 
mal, if  th(3  person  complained  of  has  not  the  charge  and  custody 
ol'  such  animal.  A  count  charging  two  offenses  is  not  double, 
if  one  is  adccpiately  and  the  other  inadequately  alleged.  The 
latter  allegation  may  be  rejected  as  surplusage.  Stafe  v. 
Palmer,  35  A[aine,  1). 

Exceptions  overruled. 

"Walton,  Danfouth,  Libbey,  Emeky  and  Foster,  JJ.,  con- 
curred. 


Commonwealth  v.  Este. 

(140  Mass.,  279.) 

Embezzlement  by  officer. 

Town  treasurer. — The  facttlmt  a  town  treaaurei  paid  certain  town 
notes  given  by  him  while  in  office  out  of  liis  private  funds,  aftor  he 
coiiscd  to  1)0  ti(';isnrer,  does  not  of  itself  constitute  sutlicient  proof  to 
warrant  a  conviction  on  an  indictment  for  embezzlement.  To  consti- 
tute till'  crime  of  embezzlement  it  is  essential  tliat  the  owner  should 
be  dei)rivcd  of  the  proiierty  embezzled  by  an  adverse  holding  or  use. 

E.  J.  SIxwDiiin,  attorney -gonoral,  for  the  commonwealth. 
ploJni  R.  Thayer,  for  the  defendant. 

HoLAtKs,  J.  The  evidence  of  the  defendant's  embezzlement 
may  l)o  summed  up  in  a  few  words,  as  follows:  While  treas- 
urer of  the  town  of  Southboro'  lie  made  two  notes,  in  author- 
ized form,  and  applied  a  large  portion  of  their  proceeds  to 
payiiKMit  of  interest  due  from  the  town  to  the  state.  In  his 
accounts  with  the  town  he  credited  himself  with  the  payments 
so  made,  but  did  not  charge  himself  with  tho  notes,  or  with 
any  part  of  their  proceeds.  The  exceptions  do  not  disclose 
whether  tlu^re  was  eviflcnce  how  his  balance  stood  at  tho  time 
of  the  earlier  of  these  transactions,  but  at  the  time  of  the  later 
his  account  showed  that  he  was  chargeable  with  $1,080.35, 
which  sum  was  diminished  by  $1,515  on  the  books  by  the  credit 
mentioned.  This  error  was  carried  through  the  books  until  he 
went  out  of  ollice.  and  he  then  settled  his  accounts  by  his 


f- 


204 


AMERICAN  CRIillNAL  REPORTS. 


books,  lie  "had  paid  the  two  notes"  out  of  liis  ])rivato  fmuls 
a,fter  ho  ceased  to  be  treasurer;  and  tliere  was  t)iher  evidence 
of  a  fraudulent  intent,  which  we  shall  mention  hereafter,  ilut 
there  was  nothing  to  show  that  he  made  the  notes,  or  received 
their  proceeds,  with  intent  to  use  them  otherwise  than  lie  used 
them  in  fact,  and  it  will  be  noticed  that,  whatever  the  prob- 
abilities, it  is  possible  that  he  useil  the  whole  ])roceeds  in  piiy- 
ing  pro])er  town  charges,  as  he  certainly  did  the  greater  ])art. 

We  deem  it  clear  that  whatever  part  was  so  used  and  in- 
tended to  be  used  was  not  embezzled,  even  if  the  use  was  con- 
trived as  pai't  of  a  scheme  to  defraud  the  town.  The  fact  that 
the  payment  was  a  means  of  embezzling  other  money  in  the 
future,  or  covered  up  an  embezzlement  of  other  money  in  tlio 
past,  would  not  make  it  an  embezzlement  of  the  money  {)ai(l; 
neither  would  the  fact  that  he  represented  it  to  the  town  (not 
to  the  ])ayecs)  as  a  payment  of  other  town  money;  that  is,  as 
a  payment  from  his  balance  on  hand,  and  not  fi'om  the  notes. 
Embezzlement  retains  so  much  of  the  character  of  larceny  that 
it  is  essential  to  the  commission  of  the  crime  that  the  owner 
should  be  dei)rivetl  of  tlie  ]n'operty  embezzled  by  an  adverse 
holding  or  use.  No  doubt  tpiestions  ma}'  arise  as  to  what  is  a 
sufficient  dei)rivation  or  adverse  holding,  as  in  Cum.  v.  Jf(Us(//i, 
105  ;Mass.,  103,  and  cases  cited.  See,  also,  AV.e  v.  llaU,  Kuss. 
&  E.  (Cr.  Cas.),  103,  401;  .V.  T.,  from  MS.,  JJayley,  J.,  2  Kuss. 
Cr.  (5th  ed.),  383;  U,(j'(Uii  i\  Ji\'r/uir>k,  1  C.  ^^  K.,  532;  X.  C, 
from  C.  J.  Tindal's  note,  2  Kuss.  Cr.  (5th  ed.),  200.  lUit  the 
principle  remains;  and  when  ])roperty  is  hehl  at  every  moment 
as  and  for  the  master  s  property,  fi-aud  as  to  the  souice  from 
which  it  comes,  or  fraudulent  intent  as  to  sometliinj'-  else,  is 
not  a  sufficient  sul»stitute  for  the  missing  element.  To  this 
extent  we  entirely  agree  with  the  English  cases  oF  /tiyina  c. 
J 'oo/t,  DqiivhW  6c  Bell,  315;  JictjiiKi,  v.  Ilolhuray^  )>  (J.  tfc  K., 
^M2:.  1  Denison,  3.70;  and  /A./'  r.  Wehh,  1  bloody,  13,1.  AVe 
';•  nk,  therefore,  that  the  fourth  ruling  recpiested  should  have 
i'oen  given.  Justice  to  the  defendant  also  required  that  a  sim- 
ilar instruction  should  have  been  given  as  to  the  other  transac- 
tion not  end>raced  in  that  retpiest. 

The  court  seems  to  have  had  chiefly  in  view  another  aspect 
of  the  case.  As  has  been  stated,  when  the  defendant  credited 
himself  with  the  payment  of  ^1,515,  his  accounts  showed  him 


to  be  c 

a|)i)eai 
The  fr 
up  an 


COMMONWEALTH  v.  ESTE. 


205 


to  1)0  chargeable  with  $1,080.35.  Ilis  actual  balance  does  not 
appeal',  nor  whetlier  he  did  have  that  amount  on  hand,  in  fact. 
TJit!  fraud,  if  tliere  was  one,  may  liave  been  intended  to  cover 
up  an  old  deficiency.  ]»ut,  treating  his  account  as  an  admis- 
sion, tlie  jury  might  have  foimd  that  he  did  then  have  that 
amount  on  liand,  and  as  his  account  was  never  corrected,  and 
his  actual  cash  balance  at  the  time  of  final  settlement,  within 
six  months,  was  less  even  than  that  required  by  his  account, 
tlioy  might  have  found  that  at  the  date  of  the  entry,  or  within 
SIX  nu)nths  thereafter,  he  withdrew  and  embezzled  $1,515  from 
the  baidc  account.  It  seems  to  have  been  partly,  at  least,  Avith 
rcfei'once  to  this  view,  that  the  jury  were  instructed  that  if  the 
det'endant  failed  to  charge  himself  with  the  $1,800  received 
from  tlie  Marlborough  IJank  on  his  treasurer's  account,  and  by 
so  doing  made  himself  better  off,  and  actually  defrauded  the 
town  out  of  that  amount,  the  jury  might  convict,  provided  he 
did  this  with  a  fraudulent  intent  to  convert;  that  the  same 
would  be  true  with  regard  to  the  ^'i,*!!!!*  transaction  with  the 
treasurer  of  the  commonwealth.  l>ut  this  language  was  mis- 
leading, even  if  it  did  not  embody  an  error  of  law  in  the  sense 
in  which  it  was  si)oken.  The  failure  to  charge  himself,  apart 
fi'oiu  the  credits,  for  payments  which  are  not  mentioned  by  the 
court,  could  only  have  been  a  step  toward  embezzling  the  pro- 
coeds  of  the  notes, —  a  part  of  which,  at  least,  the  defendant  is 
shown  not  to  have  embezzled;  yet  the  idea  is  conveyed  that  an 
embezzlement  to  the  amount  of  the  notes,  and,  it  would  seem, 
of  their  ju'ocoeds,  might  be  found  on  this  ground. 

We  do  not  think  that  the  latter  portion  of  the  charge  clearl}' 
removed  this  possible  error.  On  the  other  hand,  the  credits 
for  payments,  if  we  are  to  take  the  language  quoted  as  tacitly 
referring  to  them,  while  the}'  may  have  laid  a  foundation  for 
an  endjczzlement  of  funds  on  hand,  if  the  defendant  had  them, 
could  have  done  so  only  to  the  extent  of  such  charges,  which 
were  less  than  81.800  and  $2,000  respectively.  Further,  it  is  at 
least  as  likely  that  the  way  in  which  the  defendant,  in  fact, 
made  himself  better  otf  by  crediting  and  by  failing  to  charge 
himself,  whatever  his  intent,  was  by  concealing  an  old  defi- 
ciency, which,  of  course,  would  not  be  embezzlement,  although 
the  instruction  would  make  a  contrary  impression  on  the  jury's 
mind.     AVo  assume,  for  the  purposes  of  this  decision,  that 


'$\ 


Pi 


206 


AMERICAN  CRIMINAL  REPORTS, 


the  jury  might  have  found  that  the  defendant  embezzled  tlio 
whole  amount  laid  in  the  indictment;  but  if  so,  the  two  parts 
of  each  sum  must  have  been  got  at  in  dilForent  ways, —  one 
part  corresponding  to  the  credit  embezzled  from  the  bank  ac- 
count, the  other  part  being  the  rest  of  the  proceeds  of  the  note 
not  shown  to  liavc  been  paid  for  the  town.  "We  also  assume 
that  an  oinbezzlement  of  any  sum  from  either  source,  notes  or 
balance  on  hand,  wouUl  have  warranted  a  general  verdict  of 
guilty.  Pub.  Sts.,  ch.  203,  §  4-t;  Com.  v.  (/CoimcU,  12  Allen, 
451.  But  this  verv  uncertaintv  of  the  grounds  on  which  t\w 
A'erdict  might  go  made  it  imperative  that  the  jury  should  be 
correctly  instructed  with  reference  to  each  alternative.  For 
the  reasons  given  the  excei)tions  must  be  sustained. 

The  iirst  instruction  requested  was  pro])erly  refused.  The 
evidence  of  embezzlement  was  not  conllned  to  that  presented 
by  the  books,  and  the  court  could  not  be  required  to  select  that 
portion  and  pass  ujjou  what  its  effect  would  have  been  in  the 
absence  of  the  rest. 

Evidence  was  admitted  of  a  similar  embezzlement  ten  years 
before,  and  only  connected  with  the  offense  charged  by  ])ay- 
ments  of  interest  out  of  the  defendant's  private  funds  for  the 
])urpose  of  concealment.  As  these  payments  might  have  been 
made  from  comparatively  innocent  motives,  the  (]uesti()n  is 
raised  whether  the  evidence  is  taken  out  of  the  ordinary  rule 
which  excludes  the  proof  of  other  similar  but  distinct  offenses. 
See  Co/ii.  V.  Tnchertnan,  10  Gray,  17-5;  Coin.  v.  Choat<\  lor» 
]\[ass.,  -l.^l-i.^S;  C(yin.  v.  Jacl:wn,  132  ]\lass.,  10,  IS;  Com.  r. 
Bradford.,  120  Mass.,  42-45 ;  Com.  v.  Shepard,  1  Allen,  575-5S I . 
But  it  is  not  necessary  to  decide  this  question  in  order  to  dis- 
pose of  the  case.    Exceptions  sustained. 


snc-li 
ami 

whf 

I'V 
tlu" 
iiui 
tnis 
2.  Statv 
oiilj 
tho 
tiin 
:!.  EsTo 
tho 
of 
4.  Fkac 
inal 
jml 
llio 
snll 
fnu 


Statk  v.  Butler. 

(31  S.  C.,353.) 

Embezzlement:    Larceny  —  Indictment  —  Entopiwl ■ 

Fraudulent  intent. 


Breach  of  trust- 


1.  Sufficiency  of  indictment.— An  indictment  cliarKed  that  tho  defend- 
ant, being  secretary  of  a  certain  Bociety,  received  the  sum  of  $20, 
which  lie  took  possession  of  and  held  for  the  use  of  said  society  at 


STATE  V.  BUTLER. 


20  T 


such  secretary,  aMil  that  lio  ditl  fraudulently  and  feloniously  steal,  take 
and  carry  away,  and  convert  to  liia  own  use,  the  saiil  sura  of  money, 
wlu'nliy  lie  committed  a  broach  of  trust  with  fraudulent  intent,  and 
by  Idicc  1)1'  the  statute  in  such  case  made  and  proviiled  was  guilty  of 
tlic  crime  111'  j;rand  larceny,  contrary  to  the  form,  etc.  Held,  that  the 
iiulictniciit  was  siinicient  under  (lie  statute  that  declares  breach  of 
trust  witli  Irauduleiit  intent  to  \h'  larceny. 

2.  Statutory  lakckny.—  This  statute  did  not  create  any  new  offense,  but 
only  ext(  iul('<l  the  crime  of  larceny  at  common  law  to  eases  in  which 
the  proiH'rly  stolen  was  in  the  li-gal  jiossession  of  the  accused  at  the 
time  of  its  (-onversion. 

'].  EsToprKi,.— One  who  has  a(  ted  as  secretary  of  a  society  cannot  deny 
the  existence  of  such  society  when  prosecuted  for  a  fraudulent  breach 
of  his  trust. 

■I.  l''itAUi)Ui,iv\T  INTKNT  KSSKNTIAU — To  constitute  breach  of  trust  a  crim- 
inal o(r((ri!>e,  there  nuist  be  a  fraudulent  iiUent.  Therefore  the  circiiit 
,ju<lge  erred  in  refusing  to  churge  the  Jury,  when  so  re(|Utstcd,  "that 
the  nKM'c  fact  of  not  jKiying  over  the  money  l)y  the  defendant  was  not 
snllicient  evidence  in  itself  to  convict  him  of  a  breach  of  trust  with 
fraudulent  intent." 


Ik'l'oro  Fraser,  .1.,  S|)ai'tiinl)urf,%  ^liii'cli,  1SS4. 

Tho  indictinrnt  in  this  cnsv,  was  ayainst  Howard  Butler  under 
tlic  statute  which  (Un-hu'cs  hreaeii  of  trust  with  fraudulent 
intent  to  l)e  hirceny.     'Vha  <)i)inion  states  the  case. 

J//'.  J.  S.  li.  I'hoiiiHDii,  for  apiH'Ilant. 
J//'.  Solu'.itoi'  Dinicdii,  ''(Difra. 

May  0,  1SS4.  'J'jie  t'ollowin<^  orcUsr  of  tlie  court  was  passed 
by  Mr.  Chief  .lustice  Simi-son:  It  is  orchnvd  that  the  judg- 
ment of  tiio  circuit  court  in  tiiis  case  be  reversed,  and  that  the 
case  bo  remanded  for  a  ncnv  trial.  Tlie  reasons  for  this  judg- 
ment will  be  given  in  the  o|)ini(jn  hereafter  to  be  tiled.  Let 
the  reiuittitar  bo  sent  down  immediately. 

Tho  opinion  of  tho  court  was  delivered  by  Mr.  Chief  Justice 
Simi'son: 

Tiie  defendant  was  indicted  for  an  alleged  breach  of  trust, 
lie  was  tried  and  convicted  at  a  court  of  sessions  for  Spartan- 
l)urg  county  in  1884.  Tiie  indictment  contained  two  counts, 
in  eacii  of  which  it  was  alleged  substantially  that,  being  the 
secretary  of  the  "  Star  I'anner  Lodge  of  tho  Independent  Order 
of  tho  Knights  of  Wise  Men,"  he  received  the  sum  of  |2;3, 


12(>S 


A1\IERICAN  CRIMINAL  REPORTS. 


\ 


wii it'll  he  took  possession  of  and  held  for  the  use  of  tlio  said 
order  us  said  secretary,  and  that  he  did  fraudulently  and  feloni- 
ously steal,  til  ;o  and  carry  away,  and  convert  to  his  own  use, 
the  said  sum  <>(  mono}',  whereby  he  committed  a  breach  of 
trust  with  triiudulent  intent,  and  by  force  of  the  statute  in 
such  ease  made  and  provided  was  guilty  of  the  crime  of  grand 
larceny,  conti-ary  to  the  form  of  the  statute  in  such  case  made 
and  i)rovided,  and  against  the  peace  and  dignity  of  the  said 
state. 

The  questions  involved  in  the  appeal  are,  first,  as  to  the  sulH- 
cieiicy  of  the  indictment,  /.  <?.,  whether  grand  larceny  can  be 
charged  in  an  indictment  under  the  breach  of  trust  act;  second, 
whether  the  defendant  by  acting  as  secretary  was  estopped 
from  denying  the  incor])oration  of  the  order;  and,  tliinl, 
whether  it  was  error  on  the  part  of  the  circuit  judge  to  refuse 
to  charge  as  reipiested,  "  that  the  mere  fact  of  not  paying  over 
the  money  by  the  defendant  was  not  sullicient  evidence  in 
itself  to  convict  him  of  a  breach  of  trust  with  fraudulent 
intent." 

"We  think  the  indictment  was  sufficient.  The  act  on  the  sul)- 
ject  of  brciach  of  trust  nuikes  the  offense  larceny  in  general 
terms,  and  we  think  when  it  placed  it  under  the  general  liead 
of  larceny,  it  partakes  of  all  the  incidents  thereto,  and  is  gov- 
erned by  the  law  ai)plicable  to  larceny  as  one  of  the  classes  of 
crime,  whether  statutory  or  common  law.  Indeed,  when  the 
nature  and  purpose  of  the  act  is  considered,  such  must  have 
been  the  intention  of  the  legislature.  Larceny  at  common  Ian- 
is  defined  to  be  the  taking  and  carrying  away  the  personal 
t;oods  of  another  with  feloni(jus  intent.  lender  this  general 
definition,  before  a  party  could  commit  the  crime,  it  was  nec- 
essary that  the  property  should  be  in  the  actual  jv  constructive 
possession  of  the  owner,  or  of  some  one  else  than  the  thief. 
Conse(iuently  it  was  held  at  common  law,  that,  where  a  party 
was  in  the  legal  custody  of  the  property  of  another,  he  could 
not  commit  larceny  upon  it,  although  he  should  fraudulently 
appropriate  it  to  his  own  use,  for  the  reason  that  he  could  not 
take  it  from  the  other,  being  already  in  legal  possession  him- 
self. 
The  object  of  the  breach  of  trust  act,  as  we  understand  it. 


STATE  r.  BUTLER. 


200 


was  not  to  create  any  new  offense  in  its  nature  and  essence,  but 
simply  to  remove  tlie  technical  difficulty  in  tlie  way  of  convic- 
tion, suggested  above.  The  larceny  which  the  act  denounces 
is  the  same  in  all  of  its  features  as  common-law  larceny.  It  is 
not  simply  the  non-payment  of  a  debt,  but  it  is  the  appropri- 
ation of  the  property  of  another  to  the  use  of  the  accused, 
with  the  intent  to  make  it  his  own,  and  to  destroy  the  title  of 
tlio  true  owner,  under  circumstances  Avhich  would  make  it 
larceny  tat  common  law,  except  for  the  fact  that  he  had 
obtained  possession  in  the  first  instance  in  some  legal  way.  In 
morals  there  is  no  <lifTerence  between  a  theft  committed  upon 
property  over  which  one  has  a  chiirge  or  custody,  and  prop- 
erty in  the  possession  of  another.  The  act  recognizes  this  fact, 
and  it  simply  strips  from  the  former  class  the  defense  of  legal 
possession  which  it  had  before  the  act,  and  declares  it  to  bo 
larceny.  AVlien  so  declared,  it  must  be  governed  in  every  re- 
sjiect  b}'  the  laws  applicable  to  the  general  crime  of  larceny, 
one  of  which  is  the  division  into  grand  and  petit. 

Upon  the  second  question,  the  circuit  judge  charged  that  if 
the  jury,  from  the  testimony,  came  to  the  conclusion  that  the 
defendant  acted  as  the  secretary  of  the  order  named,  it  would 
be  too  late  for  him  to  say  now  that  there  was  no  such  society, 
but  it  Avas  a  question  for  the  jury  whether  the  defendant  was 
the  secretary  of  such  society.  This  was  in  accordance  with 
the  case  of  State  r.  Si-t/cr/i,  7  Eich.,  308,  where  it  was  held  that 
an  oftlcor  who  had  assumed  the  duties  of  an  office  could  not 
himself  dispute  the  validity  of  his  own  appointment,  even 
when  proceeded  against  crhriinaliter. 

As  to  the  last  exception,  we  think  the  defendant  was  entitled 
to  the  distinct  charge  vequested,  the  refusal  to  charge  which 
forms  the  third  groun  A  appeal.  The  object  of  the  breach 
of  trust  act,  as  we  have  said,  was  not  to  make  criminal  the 
failure  to  pa}'  a  debt.  This  often  happens  from  misfortune,  or 
from  other  causes  far  removed  from  fraud  or  crime;  and  the 
mere  fact  of  non-payment  affords  no  ground  whatever  upon 
which  to  base  a  charge  of  larcenv  or  breach  of  trust.  To  con- 
stitute  this  offense  as  to  property,  there  must  be  an  appropria- 
tion thereof,  accompanied  with  a  fraudulent  purpose  to  destroy 
the  right  of  the  true  owner.  This  is  not  a  necessary  inference 
from  mere  non-payment,  and  the  defendant  was  entitled  to 
Vol.  V  — 14 


m-   - 


210 


AMERICAN  CRIMINAL  REPORTS, 


have  it  declared  to  the  jury,  as  matter  of  law,  that  failure  to 
pay,  in  itself,  did  not  constitute  the  offense  ciiarged. 

Let  this  opinion  he  filed  with  the  judgment  heretofore  pro- 
nounced reversing  the  ju<lgment  of  the  circuit  court. 


Note. — The  doctrine  of  estoppel  does  not  apply  to  criminal  (usea. 
V.  Hutchimon,  00  Iowa,  478  (S.  C,  4  Am.  Cr.  R.,  p.  103,  and  note). 


Stale 


Woodward  v.  State. 

(lOSInd.,  127.) 

Embezzlement  :  Money  colkcteu  on  lottery  ticket  —  Indictment. 

1.  An  indictment  for  embezzlement,  charging  that  defendant  was  tlio 
"agent  and  employee"  of  a  certain  jjerson  "for  the  purpose  of  col- 
lecting money  on  a  certain  lottery  ticket,"  and  then  properly  charging 
the  embezzlement  of  such  money,  is  sufficient,  on  motion  to  quasii 
for  not  describing  the  lottery  ticket  with  sufficient  certainty. 

S.  Money  collected  on  lottery  ticket.—  It  is  no  defense  to  a  prosecu- 
tion for  emljezzlement  of  money  collected  by  an  agent  that  it  was  col- 
lected on  a  lottery  ticket,  contrary  to  the  laws  of  this  state. 

From  the  Marion  Criminal  Court. 

J.  L.  Mitchell  and  N.  C.  Carter,  for  ap]iellant. 

F.  T.  llord,  attorney -general,  and  Tr.  B.  Hard,  for  the  state. 

IIowK,  J.  The  appellant.  Woodward,  was  indicted,  tried 
and  convicted  for  the  crime  of  embezzlement,  as  charged  in 
the  second  count  of  the  indictment  against  him.  From  the 
judgment  of  conviction  he  has  appealed  to  this  court,  and  tho 
only  errors  assigned  by  him  here  are  such  as  call  in  question 
the  sufficiency  of  the  facts  stated  in  the  second  count  of  the 
indictment  to  constitute  a  public  offense,  before  as  well  as  after 
verdict.    The  evidence  is  not  in  the  record. 

In  the  second  count  of  the  indictment  it  is  charged  "  that 
John  T.  Woodward,  on  the  17th  day  of  November,  A.  D.  1884, 
at  and  in  the  county  of  Marion  and  state  of  Indiana,  was  then 
and  there  the  agent  and  employee  of  Jeremiah  Miller  for  the 
purpose  of  collecting  money  on  a  certain  lottery  ticket,  then 
and  there,  and  by  virtus  and  on  account  of  such  agency  anil 


WOODWARD  V.  STATE. 


211 


employment  by  tlie  said  Jorcmiah  M  iller,  for  the  purpose  afore- 
said, he,  the  said  John  T.  Woodward,  as  such  agent  and  eni- 
)»loyeo,  at  and  in  tlie  county  and  state  aforesaid,  did  then  and 
there  receive  and  take  into  liis  possession  divers  moneys,  bills, 
notes,  United  States  treasury  notes,  national  bank  notes,  gold 
and  silver  coins,  ni(5kel  and  copper  coins,  current  money  of  the 
United  States,  amounting  in  all  to  !B1,2(M»,  and  of  the  value  of 
^1,200;  a  more  particular  and  accurate  description  of  said 
moneys,  bills,  notes,  United  States  treasury  notes,  national 
liiink  notes,  gold  and  silver  coins,  nickel  and  copper  coins,  is  to 
the  >aid  juroi-s  unknown,  and  cannot  be  given  for  the  reason 
that  they  arc  in  the  possession  of  some  person  or  persons  to  said 
jurors  unknown;  said  moneys,  bills,  notes.  United  States  treas- 
ury notes,  national  bank  notes,  gold  and  silver  coins,  nickel  and 
copper  coins,  then  and  there  bcsing  the  moneys,  personal  goods 
and  chattels  of  Jeremiah  Miller;  and  he,  the  said  Woodward, 
on  the  day  and  year  aforesai<l,  at  and  in  the  county  and  state 
aforesaid,  did  then  and  there  unlawfully,  feloniously,  pur- 
posely, knowingly  and  fraudulently  purloin,  secrete,  embezzle 
and  appropriate  to  his  own  use  all  of  said  moneys,  personal 
goods  and  chattels  aforesaid,  with  intent  then  and  there,  and 
thereby,  to  defraud  him,  the  sai<l  ^[iller,  out  of  said  moneys, 
personal  goods  and  chattels,  contrary  to  the  form  of  the  stat- 
ute,'' etc. 

It  is  manifest  that  it  was  the  intention  of  the  state,  in  and 
by  this  second  count  of  the  indictment  against  the  appellant, 
John  T.  AVoodward,  to  charge  him  with  the  commission  of  the 
crime  of  embezzlement,  as  the  same  is  defined  and  its  punish- 
ment prescribed  in  section  1944,  R.  S.  1S81,  in  force  since  Sep- 
tember 1*.>,  1881,  In  this  section  it  is  provided  as  follows: 
"  Every  ofticer,  agent,  attorney,  clerk,  servant  or  employee  of 
any  pc^on  or  persons,  or  corporation  or  association,  who, 
having  access  to,  control,  or  possession  of  any  money,  article, 
or  thing  of  value,  to  the  possession  of  which  his  or  her  em- 
])lover  or  employers  is  or  are  entitled,  shall,  while  in  such  em- 
})loyment,  take,  purloin,  secrete,  or  in  any  way  whatever 
appropriate  to  his  or  her  own  use,  or  to  the  use  of  others,  or 
knowingly  permit  any  other  person  to  take,  purloin,  secrete, 
or  in  any  way  appropriate  to  his  or  her  own  use,  or  to  the  use 


212 


AMERICAN  CRIMINAL  REPORTS. 


of  others,  any  money,  coin,  bills,  notes,  credits,  clioses  in  action, 
or  other  property  or  article  of  value  bclonginfr  to  or  deposited 
with  or  held  by  such  person  or  jiersons,  or  corporation  or  asso- 
ciation, in  whose  ein{)loynient  said  officer,  a<^ent,  attorney, 
clerk,  servant  or  employee  ma\'  be,  shall  be  deemed  guilty  of 
embezzlement,  and,  u]ion  conviction  thereof,  shall  be  impris- 
oned in  the  state  prison  for  not  more  than  fourteen  years  nor 
less  than  two  years,  fined  in  an}'  sum  not  more  than  ,^1,000  nor 
less  than  $1,  and  disfranchised  and  rendered  incapable  of  hold- 
ing any  office  of  trust  oi  r.rofit  for  any  determinate  pei'ioil.'' 
In  section  1759  (R.  S.  1S81)  of  the  Criminal  Code,  in  force 
since  September  10,  1881,  it  is  provided  as  follows:  "The  de- 
fendant may  move  to  quash  the  indictment  or  information 
when  it  appears  upon  the  face  thereof,  either,  .  .  .  fieco/i</, 
that  the  facts  stated  in  the  indictment  or  information  do  not 
constitute  a  public  offense;  .  .  .  fourth,  that  the  indict- 
ment or  information  does  not  state  the  offense  with  sufficient 
certainty." 

Upon  these  two  statutory  grounds  of  objection  the  appellant's 
counsel  earnestly  insist  that  the  criminal  court  erred  in  over- 
ruling both  the  motion  to  quash  the  second  count  of  the  indict- 
ment and  the  motion  in  arrest  of  judgment.  The  question  for 
our  decision  is  this:  Does  the  second  count  of  the  indictment 
state  sufficient  facts  with  sufficient  certainty  to  constitute  a 
public  offense?  As  bearing  upon  the  question  of  certainty, 
section  ifso  (R.  S.  1881)  of  the  Criminal  Code  provides  as  fol- 
lows* "No  indictment  or  information  shall  be  deemed  invalid, 
no'  rfhall  the  same  be  set  aside  or  quashed,  nor  shall  the  trial, 
judgment,  or  other  proceeding  be  stayed,  arrested,  or  in  any 
manner  affected,  for  any  of  the  following  defects:  .  .  . 
tSlxth,  for  any  surplusage  or  repugnant  allegation,  when  there 
is  sufficient  matter  alleged  to  indicate  the  crime  and  poi-son 
charged ;  .  .  .  tenth,  for  any  other  defect  or  imperfection 
which  does  not  tend  to  the  prejudice  of  the  substantial  rights 
of  the  defendant  upon  the  merits." 

As  to  the  degree  of  certainty  which  is  required  in  criminal 
pleading  by  our  code,  section  1755,  Revised  Statutes,  1881,  pro- 
vides as  follows:  "The  indictment  or  information  is  sufficient 
if  it  can  be  understood  therefrom,    .    .    .    J^ifth,  that  the  of- 


m 


WOODWARD  V.  STATE. 


213 


fcnse  charged  is  stated  with  snch  a  degree  of  certainty  that  the 
court  may  pronounce  judgment  upon  a  conviction  according 
to  the  riglit  of  the  case." 

The  chief  objection  urged  by  appeUant's  counsel,  in  argu- 
ment, to  the  second  count  of  the  indictment  in  this  case,  upon 
the  ground  of  its  uncertainty,  is  that  it  contains  no  certain  or 
definite  description  of  the  lottery  ticket  mentioned  therein. 
Of  this  objection  counsel  say :  "  This  count  charges  that  the 
appellant  was,  at  a  certain  time,  the  '  agent  and  employee  of 
Jeremiah  IMillcr  for  the  purpose  of  collecting  money  on  a  cer- 
tain lottei'y  ticket.'  What  lottery  ticket?  No  number  was 
given,  and  no  reason  was  assigned  for  not  giving  the  number. 
Neither  is  it  stated  upon  what  lottery  scheme  the  ticket  was 
drawn  nor  what  lottery  issued  the  ticket, —  whether  the  Loui- 
siana, Louisville  or  Vincennos  lottery.  Nor  does  it  state 
whether  ]\riller  was  tlie  owner  or  holder  of  the  ticket,  or  to 
Avhoni  it  belonged;  nor  is  there  any  reason  given  why  these 
facts,  as  to  the  number  of  the  ticket  and  the  name  of  the  lot. 
tery  issuing  it,  are  not  set  out  in  the  indictment."  Appellant's 
counsel  then  quote  from  Bickuell's  Crim.  Pr.,  p.  So,  as  follows: 
"  The  indictment  or  information  must  be  such  that  the  defend- 
ant nuiv  know  exactly  what  he  is  to  answer,  and  that  the 
record  may  show  for  Avhat  he  has  been  put  in  jeopardy.  The 
act  or  instrument,  or  both,  constituting  the  basis  of  a  prosecu- 
tion should  be  described  with  certainty,  or,  if  not,  the  impossi- 
bility of  so  describing  it  should  be  stated  as  an  excuse  for  the 
want  of  ccrtaint}'.      Whitnaj  v.  State,  10  Ind.,  404." 

It  may  be  conceded  that  the  rules  of  criminal  pleading  and 
practice  in  this  state  are  correctly  stated  by  Judge  Bicknell  in 
his  excellent  treatise  on  criminal  ])ractice;  but  those  rules,  we 
think,  can  have  no  possible  ai)plication  to  the  second  count  of 
the  indictment  in  the  case  at  bar,  in  so  far  as  the  description 
of  tlie  lotteiy  ticket  therein  mentioned  is  concerned.  It  can- 
not be  said,  wi^'  the  slightest  degree  of  legal  accuracy,  that 
the  criminal  charge  against  the  appellant  in  such  second  count 
is  predicated  ui)on  the  lottery  ticket  mentioned  therein,  or  that 
such  lottery  ticket  constitutes  the  basis  of  this  prosecution.  If 
the  felonious  act  charged  against  the  ajjpellant  had  immediate 
connection  with  the  lottery  ticket,  or  if  it  were  something  un- 


ii 


i^M^ipHJill-OiUJl^^ 


■WF 


Ii 


2U 


AMERICAN  CRIMINAL  REPORTS. 


lawfully  done  by  him  of  or  concerning  such  ticket,  then  the 
rules  of  criminal  pleading  invoked  by  appellant  would  bo  ap- 
plicable, and  it  might  well  be  held  that  the  ticket  should  be 
described  with  certainty. 

In  the  case  in  hand  the  reference  to  the  lottery  ticket  in  tlio 
second  count  of  the  indictment  was  manifestly  made  for  tlio 
purpose  of  indicating  how  the  appellant,  as  the  agent  and  em- 
ployee of  Jeremiah  Miller,  had  access  to,  control  and  possession 
of,  the  money  of  Miller,  which,  it  was  charged,  he  had  feloni- 
ously embezzled  and  appropriated  to  his  own  use.  No  crim- 
inal act  was  charged  against  the  appellant  in  the  second  count 
in  connection  with  the  lottery  ticket;  and  therefore  it  was  not 
necessary,  we  think,  that  such  ticket  should  be  described  with 
certainty.  Besides,  as  we  have  seen,  under  section  1755  of 
our  Criminal  Code,  the  indictment  is  suHicient  if  the  ofFeiiso 
charged  is  stated  with  such  a  degree  of  certainty  that  the  couit 
may  pronounce  judgment,  upon  a  conviction,  according  to  tlio 
right  of  the  case.  In  the  case  before  us  it  cannot  be  doubted, 
as  it  seems  to  us,  that  the  offense  of  enibezzlement  is  stated  in 
the  second  count  of  the  indictment  with  such  a  degree  of  cer- 
tainty that  the  court  could,  as  it  did  upon  the  conviction  of  the 
appellant,  pronounce  the  right  judgment. 

It  is  further  claimed  by  appellant's  counsel  that  the  second 
count  of  the  indictment  was  bad,  both  on  tiie  motion  to  <)Uiisli 
and  the  motion  in  arrest,  because  the  moneys  of  Miller  which 
Avere  the  subject  of  the  embezzlement  charged  were  shown  to 
have  been  collected  on  a  lottery  ticket,  and,  as  lotteries  were 
prohibited  by  the  laws  of  this  state,  were  derived  from  an 
illegal  source.  This  position  cannot  be  maintained,  we  tliink, 
under  the  decisions  of  this  court.  U.  S.  Ej'p.  Go.  v.  Lucan,  'M\ 
Ind.,  3G1;  Rotlwoch  v.  Pcrkinsoti,  Gl  Ind.,  31) ;  State  v.  Tumcj/, 
81  Ind.,  551).  In  the  case  last  cited  the  opinion  of  the  court 
concludes  as  follows:  "In  such  a  case  it  seems  to  us  that  the 
fact,  if  it  were  the  fact,  that  the  appellee  received  such  money 
as  such  agent  for  his  jirincipal,  the  association,  ujwn  an  illegal 
consideration,  and  in  the  transaction  of  an  unlawful  business, 
did  not  constitute  any  valid  or  sufficient  defense  to  him,  the 
appellee,  in  this  prosecution  against  him  for  his  alleged  embez- 
zlement of   such  money."    AVe  conclude,  therefore,  that  the 


LANE  r.  STATE. 


215 


criminal  court  committed  no  error  in  this  case  in  overruling 
cither  appellant's  motion  to  quash  the  second  count  of  the  in- 
dictment or  his  motion  in  arrest  of  judgment.  The  judgment 
is  affirmed,  with  costs. 

Note. — See  cases  collected  and  synopsis  of  each  decision  given  in  note  to 
State  V.  Costin,  4  Am.  Cr.  R.,  169. 


Is  ■■. 

m 

i>i.' , 

my. 

j  1 

I'.' 


Commonwealth  v.  Hayes. 

(138  Mass.,  18o.) 
Evidence  :  Identifying  defendant  by  his  voice. 

The  testimony  of  a  witness  at  the  trial  of  a  criminal  case,  identifying 
the  defendant  by  his  voice,  the  defendant  being  a  person  whom  the 
witness  heard  si)eak  only  once  before  the  commission  of  the  offense 
charged,  which  was  after  dark,  is  comjietent,  and  it  may  be  considered 
by  Uie  jury  in  connection  with  other  evidence  as  to  identity. 

ir.  J).  Noi'thend  {C.  P.  Thompson  with  him),  for  the  de- 
fendant. 
E.  J.  Shennan,  attorney-general,  for  the  commonwealth. 

By  the  Court.  The  testimony  of  the  witness  Farnham, 
identifying  the  defendant  by  his  voice,  was  competent.  The 
weight  of  it  was  for  tlie  jury,  but  it  was  properly  submitted 
to  them,  to  be  considered  in  connection  Avith  the  other  evi- 
dence of  identity.     Com.  v.  Williams,  105  Mass.,  62. 

Exceptions  overruled. 


Lane  v.  State. 

(47  N.  J.,  362.) 

Extortion  in  office. 


Justice  demandino  ilt.E(UL  fees.— It  is  extortion  under  the  statute  for 
a  jjistico  of  the  peact!  to  demand  or  ask  for  his  fees  from  the  pi'osecu- 
tor  for  the  issuing  of  his  warnuit  on  a  criminal  complaint,  the  said 
justice  knowing  that  such  demand  is  illegal. 


i  V 


210  AMERICAN  CRIMINAL  REPORTS. 

On  error  to  the  Court  of  Sessions  of  the  County  of  Hudson. 

li.  B.  Seymou)-  and  W.  T.  Jloffman,  for  plaintiff  in  error. 
E.  T.  Piuton^  assistant  prosecutor  of  Hudson,  contra. 

Bkasmoy,  C.  J.  The  defendant  was  indicted  for  extortion  in 
demandinf^  a  certain  sum  of  money  as  liis  fee  from  the  prose- 
cutor for  issuing  his  warrant  as  a  justice  of  the  peace  in  a 
criminal  complaint.  At  the  trial  of  the  case  no  question  was 
made  as  to  the  fact  of  the  prosecutor  having  paid  the  foes  in 
question  to  tlie  justice  for  issuing  the  warrant  on  tlie  com- 
plaint, and  the  judge  instructed  the  jury  that,  in  acUUtion  ti. 
tins,  they  must  be  satisfied  from  the  evidence  that  such  foes 
were  demanded  by  the  justice,  and  that  at  the  time  of  making' 
such  demand  he  knew  that  ho  was  making  an  illegal  dcnuind. 

The  first  exception  taken  to  the  trial  is  that  the  dofeiidiuil 
was  not  an  officer  embraced  in  the  section  of  the  statute  which 
denounces  the  penalty  for  extortion.  The  section  referred  to 
is  the  twenty-third  section  of  tlie  crimes  act;  but  the  language 
of  the  clause  seems  clear  on  this  head.  \i'^  (h's<-r!ptlo  pci'-son- 
aruvi  is:  "Xo  judge,  justice,  sheriff,  constable,  jailer,  or  otluT 
officer  of  this  state,  ministerial  or  judicial,"  etc.  If  the  desi"- 
nation  "justice  "  does  not  with  sufficient  distinctness  indicate  a 
justice  of  the  peace,  as  he  is  a  judicial  officer  of  the  state,  he 
is  certainh'  embraced  under  the  general  deserij)ti()n,  which  is  so 
comprehensive  that  no  official  of  the  static  can  claim  to  stand 
outside  of  its  circumspection.  There  api)oars  to  be  no  force  in 
this  exception. 

The  next  exception  is  that  the  judg(»  erred  in  omitting  to 
hold  that  the  only  demand  of  fees  which  will  i-eiuler,  uiuler 
the  statute,  a  justice  liable  to  criminal  ])roseeution  is  a  demand 
made  under  a  threat  not  to  take  the  complaint  unless  the  fees 
are  first  paid.  There  appears  to  l)e  jio  warrant  whatever  for 
such  a  contention.  The  act  says  (Rev.,  p.  ."it;."),  par.  l.'JD)  "that 
no  fees  be  demanded  from  pai'ties  applying  to  justices  or  con- 
stables for  their  services,  but  shall  be  paid  out  of  the  fundsol' 
the  county  in  which  such  services  were  rendered,  i)i'ovided  the 
presiding  judge  of  the  court  of  oyer  and  terminer  shall  ap- 
prove of  such  payment."  The  prohibition  is  against  demand- 
ing fees  on  the  part  of  the  justice.    There  is  neither  l)y 


m 


LuVNE  V.  STATE. 


217 


expression  or  by  implication  anything  to  show  that  to  such 
dcniand  there  must  bo  annexed  the  alternative  that  unless  tlio 
money  is  paid  the  compUiint  will  not  be  entertained. 

Tlie  law,  as  it  Avas  expounded  to  tlio  jury  at  tlie  trial,  was 
to  this  effect:  That  prior  to  the  act  of  1871  in  which  is  to  be 
found  the  clause  just  cited  the  justice  was  not  authorized  to 
receive  or  take  fees  for  his  services,  even  if  the  same  were 
voluntarily  pi-offered  by  the  prosecutor,  but  that,  by  the  act 
just  cited,  this  rule  of  law  was  modified,  and  this  officer  was 
enjoineil  not  to  demand  such  fees,  but  that  ho  might  take  them 
if  tlioy  were  t(Mi(lei"ed  to  him  without  the  asking  on  his  part. 
This  view  rested  on  construction  derived  from  a  consideration 
of  the  above-cited  clause  forbidding  the  justice  to  make  de- 
mand of  his  fees  in  connection  with  section  '.)  of  the  same 
statute,  which,  after  prescribing  that  the  justice  sliall  certify 
his  bills  of  costs,  and  which,  after  having  been  approved  of  in 
an  appointed  numncr,  are  to  be  paid  to  the  justice,  then  pro- 
vides, in  the  language  following:  "And  said  justice  shall  re- 
fiuid  to  the  complainant  so  much  of  tiie  said  costs  as  shall 
have  been  paid  by  complainant  to  said  justice."  The  elements 
of  the  prol)l('m  were  a  prohibition  against  demanding  the  foes, 
and  a  recognition  of  such  fees  having  been  received  in  some 
cases  by  the  justice,  in  which  event  a  rejiayinent  was  ordered, 
and  the  solution  of  the  judge  at  the  trial  was  that  the  justice 
could  not  demand  such  moneys,  but  was  at  liberty  to  take 
them  if,  without  his  request,  they  were  offered  to  him.  No 
other  p()ssil)le  solution  of  the  (luestion  is  perceived.  The  law 
on  tiiat  head  was  rightly  propounded  to  the  jury. 

The  next  objection  is  that  the  defendant  could  not  be  guilty 
of  extortion,  as  he  did  not  take  from  the  prosecutor  a  greater 
sum  than  the  law  gave  hini  for  his  services.  J?ut  this  position 
is  not  well  founded  with  r(>spect  to  tho  fact  which  it  assumes. 
There  were  no  fees  duo  to  the  justice  at  the  time  ho  took 
them,  unless  the  same  were  voluntarily  paid  by  tho  prosecutor; 
for  in  the  (nent  of  no  such  j)aynient  being  made,  such  fees  did 
not  become  due  to  tho  justice  until  the  presiding  judge  of  the 
oyer  and  tei-mintM"  had  approved  of  such  payment.  The  con- 
sequence, therefore,  plainly  is,  if  this  oilicer  got  this  money  by 
an  illegal  demand,  "he  took,"  in  the  language  of  tho  criminal 
law  in  its  delinition  of  tho  crime  of  extortion,  as  cited  in  tho 


[I 


m 


21S 


AMERICAN  CRIMINAL  REPORTS. 


brief  of  the  counsel  of  the  phiintifT  in  error,  ''money  .  .  . 
that  was  not  due  to  him,  ...  or  before  it  was  due  to 
him." 

The  other  excej^tions  liave  been  examined,  but  none  of  tlicni 
appear  to  the  court  to  jiossess  that  degree  of  solidity  tliat 
renders  it  necessary  to  criticise  them  in  detail.  They  are  all 
overruled,     T  >"    Hie  judgment  bo  allirmed. 


n 


hx  PAuri:  Reooel. 

(114  U.  S.,  C43.) 
Extradition  :  Practice. 

1.  Sections  5278  and  5279  of  the  Revised  Statutes  of  tlie  United  States, 

leqiiiiing  tlie  anefit  and  surrender  of  a  fugitive  from  justici',  found  in 
one  of  the  territ  rus,  to  tl)C  state  in  which  lio  stands  eliarged  with 
treason,  felony,  or  other  crime,  embrace  every  olfenso  known  to  the 
laws  of  the  demanding  state,  including  misdemeanors. 

2.  Each  state  has  tix;  right  to  establish  tlie  forms  of  jjleadings  and  process 

to  be  observed  in  its  courts,  in  both  civil  and  criminal  cases,  subject 
only  to  those  provisions  of  the  constitution  of  the  United  States  involv- 
ing the  protection  of  life,  liberty  and  property  in  all  tlie  states  of  the 
Union. 

8.  Upon  the  executive  of  the  state  in  which  the  accused  is  found  rests  the 
responsibility  of  determining  whether  he  is  a  fugitive  from  the  justice 
of  the  demanding  state. 

4.  If  the  deterniination  of  that  fact  by  the  executive,  upon  evidence  intro- 
duced before  him,  is  subject  to  judicial  review  upon  h«hi'((s  corpus,  Vv 
accused,  being  in  custody  under  liis  warrant  —  which  recites  the  rectui- 
sition  of  the  demanding  state,  accompanied  by  an  authentic  indiciment, 
charging  him  substantially  in  the  language  of  her  statutes  with  a 
specific  crime  committed  within  her  limits, —  should  not  be  disi-harged 
merely  because,  in  the  judgment  of  the  court,  the  evidence  as  to  his 
being  a  fugitive  from  justice  was  not  as  full  as  might  jiroperly  have 
been  reiiuired,  or  I)ecause  it  was  so  meager  jis,  perhaps,  to  admit  of  a 
conclusion  tliirerent  from  that  reached  by  him. 

This  was  an  apjieal  from  the  judgment  upon  hahraf^  rorpns 
of  the  third  judicial  district  court  of  Utah,  remanding  the  ap- 
pellant to  the  custody  of  the  marshal  of  the  United  States,  by 
whom  he  had  be<;n  arrested. 

The  arrest  was  nuide  under  the  authority  of  the  warrant  of 
the  governor  of  Utah,  which  recited  that  it  had  been  repre- 


..ii 


EX  PARTE  REGGEL. 


219 


scntcd  by  the  governor  of  Pennsylvania  that  Louis  Ileggel 
stood  charged  in  that  commonwealth  with  the  crime  of  obtain- 
ing goods  by  false  pretenses  from  Daniel  Myers  and  (Jharlea 
(ioodnian;  tliat  he  liad  tied  from  the  justice  of  that  common- 
wealth, and  had  taken  refuge  in  the  territory  of  Utah. 

The  evidence  laid  before  the  governor  of  Utah  was  entirely 
documentary,  and  embraced : 

1.  The  requisition,  in  the  customary  form,  of  the  governor 
of  Pennsylvania,  requesting  the  a])prehension  of  Keggel,  and 
his  delivery  to  the  agent  of  Pennsylvania,  and  to  which  was 
aimexed  a  coi)y  of  the  indictment,  and  other  papers,  certified 
l)y  him  to  be  authentic. 

2.  A  duly  certified  copy  of  the  indictment  referred  to  in  the 
foregoing  recjuisition. 

3.  Duly  certified  copies  of  certain  provisions  of  the  penal 
laws  of  I'ennsylvania  regarding  the  sufKciency  of  indictments, 
the  time  when  and  the  manner  of  making  objections  thereto 
for  any  formal  defect  ajiparent  on  the  face  thereof,  etc. 

4.  An  affidavit  by  Frederick  Gentner  as  follows: 
"  CoiniiH»unt>altli,  of  Penna.  lu  Louis  Iie<j(jd. 

"  Fi'ederick  Gentner,  being  duly  sworn  according  to  law,  de- 
poses and  says:  The  grand  jury  of  the  March  sessions  of  the 
city  and  county  of  Philadelphia  found  a  true  bill  of  indictment 
against  Louis  Keggel,  charging  him  Avith  the  crime  of  false 
])retenscs,  and  that  the  said  Louis  Keggel  is  a  fugitive  from 
justice,  and  now  in  Salt  Lake  City,  Utah  territory." 


^Ir.  Justice  IIauf-an  delivered  the  opinion  of  the  court : 
This  case  arises  under  sections  .5278  and  5279  of  the  Revised 
Statutes  of  the  United  States,  which  provide: 

"Skc.  r>278.  Whenever  the  executive  authority  of  any  state 
or  territory  demands  any  person  as  a  fugitive  from  justice  of 
the  executive  authority  of  any  state  or  territory  to  which  such 
])erson  has  fled,  and  produces  a  copy  of  an  indictment  found 
or  affidavit  made  before  a  magistrate  of  any  state  or  territory, 
charging  the  person  demanded  with  having  committed  treason, 
felony  or  other  crime,  certified  as  autlientic  by  the  governor 
or  chief  magistrate  of  the  state  or  territorv  from  whence  the 
])erson  so  charged  has  floil,  it  shall  be  the  duty  of  the  executive 
authority  of  the  state  or  territory  to  which  such  person  has 


2-20 


AlklERICAN  CRIMINAL  REPORTS. 


fled  to  Ccauso  liim  to  bo  .arrested  iind  secured,  and  to  cause  notice 
of  the  arrest  to  bo  mven  to  the  executive  autlioritv  making 
such  demand,  or  to  tlie  agent  of  such  autlioritv  appointed  to 
receive  the  fugitive,  and  to  cause  the  fugitive  to  be  (k'livered 
to  such  agent  when  he  shall  appear.  If  no  ifuch  agent  appears 
Avithin  six  months  froin  the  time  of  the  arrest  the  jtrisoner  may 
be  discharged.  All  costs  or  expenses  incurred  in  the  appre- 
hending, securing  and  transmitting  such  fugitive  to  the  state 
or  territory  making  such  demand  shall  be  ])aid  by  such  state  or 
teri'itory. 

"8i;o.  5270.  Any  agent,  so  appointed,  who  receives  the  fugi- 
tive into  his  custody,  shall  bo  empowered  to  transpoi't  iiim  to 
the  state  or  territory  from  which  he  has  fled.  And  every  j)eis<iii 
who,  by  force,  sets  at  liberty  or  rescues  the  fugitive  from  such 
agent  while  so  transporting  him,  shall  be  lined  not  more  tliaii 
^.■idO,  or  im{)risoned  not  more  than  one  year."    1  Stat.,  Sol*,  cli. 

h  his  ^5  "• 

It  is  not  necessary  to  consider  the  (piestion  suggested  by 
counsel  as  to  the  right  of  the  governor  of  the  territory  to  have 
Avithheld  the  pai)ers  upon  which  he  based  his  warrant  for  the 
arrest  of  the  accused;  for  the  record  shows  that  the  recpiisition 
and  the  accompanying  |)apers  from  the  governor  of  IViinsyl- 
vania  constituted  the  evidence  upon  which  he  acted,  ami  wtjre 
submitted  to  the  court  to  which  the  writ  of  h<ilu(i><  ro/-j>ii.-i  was 
returned. 

Under  the  act  of  congress,  it  became  the  duty  of  the  gov- 
ernor of  Utah  to  cause  the  arrest  of  Keggel.and  his  delivery  to 
the  agent  appointed  to  receive  him,  wlien  it  appeared:  1.  That 
the  demand  by  the  executive  authority  of  Pennsylvania  was 
accompanied  by  a  co|)y  of  an  indictment,  or  allidavit  made  be- 
fore a  magistrate,  charging  Reggel  with  having  committed 
treason,  felony  or  other  crime  within  that  state,  and  certilied 
as  authentic  by  her  governor.  2.  That  the  person  demand«.'d 
■was  a  fugitive  from  justice. 

The  fii'st  of  those  conditir»ns  was  met  by  the  production  to 
the  governor  of  Utah  of  the  indictment  (<luly  certilied  as  au- 
thentic) of  tho  grand  jury  of  the  court  of  (piarter  sessions  of 
the  peace,  for  tho  city  and  county  of  Philadelphia,  Pennsyl- 
vania, wherein  tho  accused  was  charged  with  having  com  lil- 
ted the  crime  of  obtaining  by  false  pretenses  certain  goods 


EX  PARTE  REOGEL. 


221 


with  tlic  intent  to  clioat  and  (lofriiud  the  persons  therein  named ; 
which  ofTcMise,  as  was  niadi!  to  a])|)ear  from  the  statutes  of  that 
coiinnonwealth  (a  copy  of  whieli,  duly  certiliefl  as  authentic, 
ac('omi)anied  the  indictment),  is  a  misdemeanor  under  the  laws 
of  Pennsylvania,  punishaiile  In'  a  fine  not  exceedinfj  $5<»0,  and 
imprisonment  not  exceedinj^  three  years. 

It  was  ohjected  in  the  court  of  ori<:,Mnal  jm-isdietion  that  there 
could  he  no  valid  re(pusition  based  upon  an  indictment  for  an 
olfens(^  less  than  a  felony.  Tiiis  view  is  erroneous.  It  was  de- 
clared in  Kent  lick  ijv.  Di'nnison,'i\  Flow.,  00,  !)!>,  that  the  words 
"  treason,  felony  or  other  crime,"  in  section  2  of  article  I  of 
the  constitution,  include  every  ofTcMise,  f rom  the  hi<>iiest  to  the 
lowest,  known  to  the  law  of  the  state  from  which  the  accused 
had  lied,  includiiif;  misdemeanors.  It  was  there  said  by  Chief 
Justice  Taney,  s|)eakinfi^  for  the  whole  court,  that  looking  to 
the  words  of  the  constitution,  "to  the  obvious  ])olicy  and 
necessity  of  this  ju'ovision  to  preserve  harmony  between  the 
states  and  order  and  law  within  their  respective  borders,  and  to 
its  early  adoi)tion  by  the  colonies,  and  then  by  the  confederated 
states,  whose  mutual  interest  it  was  to  give  each  other  aid  and 
sui)port  whenever  it  was  n(>eded,  the  conclusion  is  irresistible 
that  this  comjjact  engrafted  in  the  ct)nstitution  included,  and 
was  intended  to  include,  ev(My  offense  made  ])unishable  by 
the  law  of  the  state  in  which  it  was  committed.'"  It  is  within 
the  i)ower  of  (Mich  state,  except  as  her  autlH)rity  may  be  limited 
by  tlie  constitution  of  tlie  United  States,  to  declare  what  shall 
he  offenses  against  her  laws,  and  citizens  of  other  states,  when 
within  her  jurisdiction,  are  subject  to  those  laws.  In  recogni- 
tion of  this  right,  .so  reserved  to  the  states,  the  words  of  the 
clause  in  reference  to  fugitives  from  justice  were  made  sulR- 
ciently  comi)rehonsiveto  include  every  offense  against  the  laws 
of  the  demanding  state,  without  exception  as  to  the  nature  of 
the  crime. 

Although  the  constitutional  provision  in  question  does  not 
in  terms  refer  to  fugitives  fi-om  the  justice  of  any  state,  who 
may  be  found  in  one  of  the  territories  of  the  United  States,  the 
act  of  congress  has  e(]ual  application  to  that  class  of  cases,  and 
the  words  "treason,  felony  or  other  crime''  must  receive  the 
same  interpretation,  wiien  the  demand  for  the  fugitive  is  made, 
under  that  act,  upon  the  governor  of  a  territory,  as  when  made 


OOQ 


AMERICAN  CRIMINAL  REPORTS, 


upon  the  executive  authority  of  one  of  the  states  of  (lie 
Union. 

Another  proposition  advanced  in  behalf  of  appellant  is,  that 
the  indictment  whicli  acconii)anied  the  requisition  docs  not 
sufficiently  charge  the  commission  of  any  crime,  of  whicli  fjict 
it  was  the  duty  of  the  governor  of  Utah  to  take  notice,  and 
which  the  court  nuiy  not  ignore  in  determining  whether  tlie 
.appellant  is  lawfully  in  custody.  In  connection  with  this  prop- 
osition, counsel  discusses,  in  the  light  of  the  adjudged  cases, 
the  general  question  as  to  the  authority  of  a  court  of  the  state 
or  territory,  in  which  the  fugitive  is  found,  to  discharge  him 
from  arrest,  whenever,  in  its  judgment,  the  indictment,  accord- 
ing to  the  technical  rules  of  criminal  pleading,  is  defective  in 
its  statement  of  the  crime  charged.  It  is  sufficient  for  the  pur- 
poses of  the  present  case  to  say  that,  by  the  laws  of  Pennsyl- 
A'ania,  every  indictment  is  to  be  deemed  and  adjudged  sulli- 
cient  and  good  in  law  which  charges  the  crime  substantially  in 
the  language  of  the  act  of  assembly  prohibiting  its  commission 
and  ])rescril)ing  the  ])unisliment  therefor,  or,  if  at  common 
law,  so  plaiidy  that  the  nature  of  the  offense  charged  may  he 
easily  understood  by  the  jury;  and  that  the  indictment,  which 
accompanied  the  i-equisition  of  the  governor  of  Pennsylvania^ 
does  charge  the  crime  substantially  in  the  lauguage  of  her 
statute.  That  commonwealth  has  the  right  to  establish  the 
forms  of  pleadings  and  process  to  be  observed  in  her  own 
courts  in  both  civil  and  criminal  cases,  subject  only  to  those 
provisions  of  the  constitution  of  the  United  States  involving  the 
in'otection  of  life,  liberty  and  property  in  all  the  states  of  the 
Union. 

The  only  question  remaining  to  be  considered  relates  to  the 
alleged  want  of  competent  evidence  Ijcfore  the  governor  of 
Utah,  at  the  time  he  issued  the  warrant  of  arrest,  to  prove  that 
the  appellant  was  a  fugitive  from  the  justice  of  Pennsylvania. 
Undoubtedly  the  act  of  congress  did  not  impose  upon  the 
executive  authority  of  the  territory  the  duty  of  surrendering 
the  appellant,  unless  it  was  made  to  appear,  in  some  proper 
way,  that  he  was  a  fugitive  from  justice.  In  other  words,  the 
appellant  was  entitled,  under  the  act  of  congress,  to  insist  upon 
proof  that  he  was  within  the  demanding  state  at  the  time  he 
is  alleged  to  have  committed  the  crime  charged,  and  subse- 


EX  PARTE  REGCJEL. 


223 


(jucntly  Avitlulrew  from  her  jurisdiction,  so  that  he  coiihl  not 
be  reached  h}"^  her  criminal  i)roccss.    The  statute,  it  is  to  be 
observed,  does  not  prescribe  the  character  of  sucli  proof;  but 
tliat  tlie  executive  authority  of  the  territory  was  not  required, 
by  the  act  of  congi'css,  to  cause  the  arrest  of  ap|)eUant,  and 
his  delivery  to  the  agent  appointed  by  the  governor  of  Penn- 
sylvania, without  ])roof  of  the  fact  tiiat  he  was  a  fugitive  from 
justice,  is,  in  our  judgment,  clear  from  the  language  of  that 
act.    Any  other  interpretation  would  lead  to  the  conclusion 
that  the  mere  requisition  by  the  executive  of  the  demanding 
state,  Jiccompanied  by  the  copy  of  an  indictment,  or  an  affi- 
davit before  a  magistrate,  certified  by  him  to  be  authentic, 
charging  the  accused  with  crime  committed  within  her  limits, 
imjioses  upon  the  executive  of  the  state  or  territory  where  the 
accused  is  found,  the  duty  of  surrendering  him,  although  lie 
may  be  satislicd,  from  incontestable  proof,  that  the  accused 
had,  in  fact,  never  been  in  the  demanding  state,  and,  there- 
fore, could  not  be  said  to  have  fled  from  its  justice.     Upon  the 
executive  of  the  state  in  which  the  accused  is  found  I'csts  the 
responsibility  of  determining,  in  some  legal  mode,  whether  he 
is  a  fugitive  from  the  justice  of  the  demanding  state.    He 
does  not  fail  in  duty  if  ho  makes  it  a  condition  precedent  to 
the  surrender  of  the  accused  that  it  be  shown  to  him,  by  com- 
])etent  proof,  that  the  accused  is,  in  fact,  a  fugitive  from  the 
justice  of  the  demanding  state. 

Did  it  sulliciently  appear  that  the  appellant  was,  as  repre- 
sented by  the  executive  authority  of  Pennsylvania,  a  fugitive 
from  the  justice  of  that  commonwealth?  AVe  are  not  justified 
by  the  record  before  us  in  saying  that  the  governor  of  Utah 
shouhl  have  held  the  evidence  inadequate  to  establish  that  fact. 
The  warrant  of  arrest  refers  to  an  affidavit  taken  before  a  no- 
tary public  of  Pennsylvania,  showing  Eeggel's  fligiit  from  that 
commonwealth.  There  Avas  no  such  affidavit;  but  the  refer- 
ence, manifestly,  was  to  the  affidavit  made  by  Frederick  Gent- 
ner,  which  recited  the  finding,  by  the  grand  jury  of  the  city  and 
county  of  I'hiladelphia,  of  a  true  bill  of  indictment  charging 
Eeggel  with  "  the  crime  of  false  pretenses,"  and  stating  that 
he  "  is  a  fugitive  from  justice,"  and  was  then  in  Salt  Lake  City, 
Utah  territory.  This  is  sworn  to,  and  is  attested  by  the  seal  of 
the  court  of  quarter  sessions  —  the  court  in  which  the  prosecu- 


i 


22-t 


AMERICAN  CRIMINAL  REPORTS. 


tion  is  pendiiT^.  It  is  not  entirely  clear  from  the  reeonl.  as 
presented  to  us,  wluit  is  the  official  character  of  the  piMson  !)(>. 
fore  whom  the  allldavit  was  made.  The  reasonable  inlViviU'c 
is,  that  tlie  allldavit  was  ma<le  in  the  court  where  the  prosocu- 
tion  is  pending,  and  that  it  is  one  (tf  the  pajiers  accompanying 
the  rc(juisition  of  the  governor  of  Pennsylvania,  and  wliicli  lio 
certified  to  be  authentic. 

It  is  conteiuled  that  (Jentner's  affidavit  that  TIefrgel  is  a  fngi- 
tive  from  justice  is  the  statement  of  a  legal  conclusion,  and  is 
materially  defective  in  not  selling  out  the  facts  u])on  which 
that  conclusion  rested.  Although  that  statenuMit  in-esents.  in 
some  aspects  of  it,  a  question  of  law,  we  cannot  say  that  the 
governor  of  Utah  erred  in  regarding  it  as  the  statement  of  ii 
fact,  and  as  suflicient  evidence  that  appellant  had  fled  from 
the  state  in  which  he  stood  charged  with  the  commission  of  a 
particular  crime,  on  a  named  <lay,  at  the  city  and  county  of 
Philadelphia;  especially  as  no  opposing  evidence  was  brought 
to  his  attention.  If  the  determination  of  that  fact  by  the  gov- 
ernor of  Utah  upon  evidence  introduced  before  him  is  subject 
to  juiiicial  review  upon  hahcuft  rorj»/s,  the  accused,  in  custody 
under  his  warrant  —  which  recites  tlie  demand  of  the  governor 
of  Pennsylvania,  accompanied  by  an  authentic  in<lictment 
charging  him,  substantially,  in  the  language  of  her  statutes, 
witli  a  specific  crime  committed  within  hei'  limits, —  should  not 
be  discharged  merely  because,  in  the  judgment  of  the  court, 
the  evidence  as  to  his  being  a  fugitive  from  justice  was  not  as 
full  as  might  j)roperly  have  been  refjuired,  or  because  it  was  so 
meager  as,  perhaps,  to  admit  of  a  ccmclusion  diffei-ent  from 
that  reached  by  him.  In  the  present  case,  the  pi-oof  l)efore  the 
governor  of  Utah  may  be  deemed  sufficient  to  nuike  a  jn'him 
facte  case  against  the  appellant  as  a  fugitive  from  justice 
within  the  meaninfj  of  the  act  of  congress. 

Judgment  ajfinned. 

Note. —  History  of  the  constitutional  provision  ajid  of  the  act  of  con- 
gress of  1703  trith  reference  to  fugitives  from  justice. —  As  early  aa  1C4;{, 
by  articles  of  confederation  between  the  plantations  under  the  goverinnciit 
of  Massachusetts,  the  plantation  under  the  government  of  New  Plymouth, 
the  plantations  under  the  government  of  Connecticut  and  the  government 
of  New  Haven,  with  the  plantation  in  combination  therewith,  these  plan- 
tations pledged  themselves  to  one  another,  that,  upon  the  escape  of  any  pris- 
oner or  fugitive  for  any  criminal  cause,  whether  by  breaking  prison  or 


EX   I'AUTE  RECJCJEL. 


23d 


gcttinp;  ftwiiy  from  the  offlror.  or  othorwisc  psouiiiMff,  upon  tlic  icrtillciitt'  <>f 
two  mii;^'ist rates  of  tin'  jurisdiction  out  of  wliidt  tiu-  <'scii|»'  \s'as  Mia<l*'  tiiut 
ho  wiis  a  prisoner  or  such  offender  lit  tlie  tinio  of  tlie  escape,  the  inagiH- 
trati's,  or  some  of  lUein.  of  tiie  jurisdiction  where,  for  tlie  present,  the  said 
prisoner  or  fugitive  iil)ideth,  shall  forihwith  >j;rant  such  a  warrant  as  the  case 
will  hear,  for  the  ajtpreheiidinf?  of  any  such  i)erson  and  the  delivery  of  him 
into  the  hands  of  the  ofllcer  or  other  person  who  j>ursueth  him;  and  if  there 
he  help  re(|uired  for  the  safe  returning  of  any  such  olfender,  then  it  shall 
he  granted  unto  hiin  that  craves  the  sanu',  he  payin><  the  charges  therefor. 
^Vhen  the  thirteen  colonies  formed  a  compact  for  mutual  8U})port,  a  ja-ovisioa 
was  iiisi'rtetl  in  their  articles  of  confederation,  which  is  in  the  following 
words ; 

"  If  any  person,  KU'ltv  of  or  eharjjed  with  treason,  felony,  or  other  hij^h 
misdemeanor,  in  any  state,  shall  tlee  from  justice  and  he  found  in  any  other 
of  the  United  States,  he  shall,  upon  di'mand  of  the  governor  or  executive 
power  of  the  slate  from  which  he  lied,  he  delivered  u|)  ami  removed  to  the 
state  having' jurisdiction  of  his  olfense."  The  provision  thus  adojjtetl  and 
inserted  in  the  articles  of  confederation  was  introchiced  in  the  constitution 
suhstaiitially  in  the  same  words,  hut  suhstitutin^  the  word  "  crime"  for  the 
words  ■•  hi>;h  misdemeanor,"  which  would  indicate  a  purpose  to  include 
every  oll'ense  known  to  the  law  of  the  state  from  which  the  party  char^^ed 
had  tU'd. 

The  constitution  havinj;  estahlished  the  rij;ht  of  the  executive  authority 
of  the  state  where  the  crime  was  committed  to  demand  the  fuf^itive  from 
the  ixecutive  authority  of  the  state  in  which  ho  is  found,  and  the  ohligation 
on  the  part  of  such  executive  to  delivi-r  him  into  the  hands  of  the  oilicer  or 
agent  of  the  demanding  state,  it  hecame  necessary  to  pi'ovide  hy  law  the 
mode  of  carrying  this  jjrovision  into  e.\ecutii>n.  The  governor  of  the  state 
<'ould  not.  upon  a  charge  made  hefore  him,  demand  tiie  fugitive,  unless  the 
l)arty  was  chargeil  in  the  regular  course  of  judicial  imueeilings  with  having 
heeii  guilty  of  a  criminal  oll'ense.  And  it  \Nas  eipially  necessary  that  the  ex- 
ecutive authority  of  the  state  upon  which  the  demand  was  nuidi',  when 
called  on  to  issue  his  warrant  ftir  the  arrest  of  the  fugitive,  should  he  satis- 
fied, hy  competent  proof,  that  the  party  inm  in  fact  a  fugitive  from  justice. 
This  duty  manifestly  devolved  upon  congress;  for,  if  left  U>  the  states,  each 
stale  might  re(|uire  ditlerent  proof  to  authenticate  the  judicial  proceedings 
upon  which  the  demand  wiLs  founded.  Ri'sides,  the  governor,  hy  virtue  of 
his  olHce,  could  not  lawfully  issue  a  warrant  to  arrest  an  individual  with- 
out a  law  of  the  state  or  of  (Congress  to  authorize  it.  These  ditiiculties  pre- 
sented themselves  as  eruly  iis  1791  in  a  demand  made  by  the  governor  of 
Pennsylvania  upon  the  governor  of  Virginia,  and  both  of  them  admitted 
the  propriety  of  hiinging  the  subject  hefore  the  ja'esident,  who  immediately 
submitted  the  matter  to  the  consideration  of  congress.  This  led  to  the  act 
of  February  12.  17!)3,  which,  so  far  as  it  relates  to  this  subject,  is  given  in 
full  in  the  opinion  of  the  court  in  E.v  parte  Reyyel,  supra. 

In  CoiuiiioiiUTitlfh  of  Kciitiu'liii  r.  Pciuiitiiii,  (fot-crnor,  etc.,  34  llow.,  66 
(Chief  Justice  Taney  delivering  th.  opinion  of  thecotu-t),  it  was  held  that,  a.s 
the  judicial  acts  which  are  necessaiy  to  an  tin  iri/.e  the  demand  are  plainly  speci- 
fied in  the  act  of  congress,  and  thecertilicate  of  the  executive  authority  is 
Vol,  V  — 15 


If 


.t  ii 


226 


AMERICAN  CRIMINAL  REPORTS. 


made  conclusive  when  presented  to  the  executive  of  the  state  where  tlic  fngi- 
tive  is  found,  "  he  has  no  right  to  look  behind  them  or  to  question  them,  or  to 
look  into  the  character  of  the  ci-ime  si»ecified  in  this  judicial  proceofling. 
The  duty  which  he  is  to  perform  is,  as  we  have  already  said,  merely  minis- 
terial—that is,  to  cause  the  party  to  be  arrested  and  delivered  to  theaKent 
or  authority  of  the  state  where  the  crime  was  conunitted.  It  is  said  in  the 
argument  that  the  executive  officer  u]wn  whom  this  demand  is  made  ninst 
have  a  discretionary  power,  because  he  must  inquire  and  decide  who  is  the 
person  demanded.  But  this  certainly  is  not  a  discretionary  duty  ujion  wliich 
he  is  to  exercise  any  judgment,  but  is  a  mere  ministerial  duty  —  that  is,  to 
do  the  act  reiiuired  to  be  done  by  him,  and  such  as  every  marshal  and  sheriff 
must  perform  when  process,  either  criminal  or  civil,  is  jilaced  in  bis  bamlH  to 
be  served  on  the  person  named  in  it.  And  it  never  has  been  8uiip<isod  that 
this  duty  involved  any  discretionary  power,  or  made  biin  anything  more 
than  a  mere  ministerial  officer;  and  such  is  the  position  and  character  of  the 
executive  of  the  state  under  this  law  when  the  demand  is  made  upon  him 
and  the  requisite  evidence  produced.  The  governor  has  only  to  issue  his 
warrant  to  an  agent  or  officer  to  arrest  the  party  named  in  the  demand."' 
The  nature  of  a  minist(>rial  duty  devolving  upon  an  executive  officer  is 
clearly  and  concisely  stated  in  the  above  opinion.  Tiie  executive  of  a  state 
is  a  mere  cretiture  of  the  law,  and,  in  regard  to  ministerial  duties,  be  is 
amenable  to  the  law,  and  ought  to  be  coinjielled  to  perform  such  duties  the 
same  as  any  other  ministerial  officer.  Tiie  governor  of  Ohio  refused  to  issue 
his  warrant  for  the  airest  of  the  fugitive,  an<l,  strange  as  it  may  seem,  the 
court  came  to  the  conclusion  that  there  is  no  power  under  the  law  by  wliich 
be  could  be  compelkvl  to  ju'ifonn  this  duty,  though  enjoined  upor,  him  under 
and  by  virtue  of  the  act  of  congress  parsed  in  conformity  with  the  provision 
of  the  constitution  relative  thereto.  We  think  the  conclusions  reached  in 
the  flecision  are  inconsistent.  When  the  law  enjoins  a  duty  upon  an  oflicer, 
whether  that  officer  goes  by  the  name  of  the  governor  of  a  state  or  the  jtres- 
ident  of  the  United  States,  there  ought  to  he,  and  we  think  there  is,  a  power 
under  the  law  to  compel  him  to  perform  a  ministerial  dtity,  and  this  witli- 
out  encroaching  upon  his  executive  prerogative.  There  is  no  rcxson  wiiy  a 
governor  of  a  state,  or  the  jiresident  of  the  United  States,  who  is  a  mere 
creature  of  the  law,  should  be  allowed  to  shield  biuiself  behind  the  executive* 
prerogative  to  escajie  the  performance  of  a  duty  enjoined  upon  him  by  hiw; 
and  this  is  especially  so,  if,  as  stated  in  the  t)pinion,  he  has  no  right  to  look 
behind  the  certificate  of  the  executive  of  the  demaJiding  state.  Yet  this  is 
hardly  the  proper  place  to  discuss  a  (juestion  of  such  magnitude.  Suffice  it 
to  say  that  so  much  of  that  decision  as  holds  that  the  govt^-nor  of  the  state 
upon  which  the  demand  is  made  has  no  right  to  look  behind  the  certilicato 
of  the  executive  of  the  demanding  state  seems  to  be  overruled  by  the  recent 
decision  of  Ex  purtc  lieggcl,  althougli  it  does  not  exjiressly  say  so. 

The  jwirer  of  state  voiirts  to  inquire  into  the  legality  of  the  arre/tt  of  a 
fugitive  from  justice  in  extradition  procerdingfi.— In  Itobbv.  Connolly,  111 
U.  S.,  624.  this  ((uestion  is  fully  discussed  by  Mr.  Justice  Harlan,  who  de- 
livered the  unaninious  opinion  of  the  court.  In  this  cii.se  one  V.  H,  Haylty 
was  arrested  in  the  city  of  San  Francisco,  California,  and  ilelivered  to  W, 
L.  Robb,  who  ha<l  been  empowered  by  the  governor  of  tiie  state  of  Oregon 


EX  PARTE  REGGEL. 


227 


to  take  and  receive  him  from  the  proper  authorities  of  the  state  of  Cali- 
fornia, and  convey  liim  to  the  former  state,  to  be  there  dealt  with  according 
to  law.  The  arrest  and  delivery  were  in  pursuance  of  the  warrant  of  the 
governor  of  California.  After  his  arrest  Bayley  sued  out  a  writ  of  habeas 
corpus  from  the  jutlge  of  the  superior  court  for  the  city  and  county  of  San 
Francisco,  directed  to  Rohb,  and  commanding  him  to  have  the  body  of  said 
petitioner  before  said  judge,  together  with  projier  returns  as  to  the  time  and 
cause  of  his  detention,  etc.  His  application  for  the  writ  proceeded  upon  tlie 
ground  that  the  imprisonment  and  detention  were  illegal,  in  that  "  no  copy 
of  the  indictment  found  or  attidavit  made  before  a  magistrate,  charging 
|)etitioner  with  any  crime,  was  produced  to  the  governor  of  California,"  and, 
consequently,  that  the  warrant  of  arrest  was  issued  without  compliance  with 
tlio  act  of  congress. 

R(>l)b  made  a  return  that  he  held  Bayley  "under  the  authority  of  tl»e 
United  States,"  a.s  evidence  whereof  he  produced  a  copy  of  the  warrant  of 
t lie  governor  of  California  with  his  commission  from  the  governor  of  Ore- 
gon, authorizing  him  to  take  and  receive  the  prisoner  as  a  fugitive  from 
justice.  He  refused  "to  pr<i<luce  said  C.  H.  Bayley,  on  the  gi'ound  t'lat, 
under  the  laws  of  the  United  States,  he  ought  not  to  produce  said  prisoner, 
l)('oause  the  honorable  superior  court  has  no  power  or  authority  to  proceed 
in  the  premises."  For  this  refusal  — the  court  finding  that  the  body  of  the 
petitioner  could  be  produced — Robb  was  adjudged  guilty  of  contempt  of 
court;  and  by  order  of  the  judge  he  wa-s  arrested  by  the  sheriff  and  com- 
mitted to  jail  until  he  "  obeys  said  writ  and  ])ro(luces  the  body  of  said  C.  H. 
May'ey,"  or  "  until  he  be  otherwise  legally  discharged."  He  thereupon  sued 
out  a  writ  of  habeas  corpus  from  the  supreme  court  of  California.  Passing 
ov(  r  all  (juestions  other  than  tiiat  of  the  power  of  the  court  below  to  com- 
IK'I  the  priMluction  of  tlie  ImmIv  of  thei)risoner  before  it,  so  that  the  cause  of 
his  iniprisomiient  and  <letention  ccnihl  be  inquired  into,  the  court,  deci<l- 
ing  this  question  in  the  affirmative,  ordennl  that  the  writ  be  dismissed  and 
that  the  petitioiu-r  be  remamU'd  to  the  custody  of  the  sheriff.  But  from  the 
order  dismissing  the  writ  and  remanding  the  petitioner  to  the  custoily  of 
the  sheriff,  Robb  prosecuted  ii  writ  of  error  from  the  supreme  court  of  the 
United  Stiites. 

As  a  decision  of  the  supreme  court  of  the  United  States  on  a  qui-stion 
of  this  nature  is  binding  not  oidy  upijn  the  federal  courts  of  inferior  juris- 
(hction  but  also  upon  the  state  courts,  the  nuiterial  parts  of  the  decision  are 
;;iven  in  full.     Mr.  Jiistice  Harlan,  speaking  for  the  court,  says: 

"The  authority  and  duty  of  the  judge  of  that  (the  state)  court  to  issue  a 
writ  of  hnhrns  cnrpiisnyion  Bay  ley's  api)lication  is  not  disputed  in  argument. 
Ihit  the  contention  of  the  plaintiff  in  error  is,  that  in  receiving  and  holding 
liayley  for  tiie  purpose  of  transporting  him  to  Oregon  he  was,  and  is,  acting 
under  authority  and  executing  the  power  of  the  United  States:  and,  there- 
fore, that  neither  the  su[)erior  .ourt  of  San  Francisco,  nor  one  of  its  judges, 
ctndd  leg.illy  compel  him  to  produce  the  prisoner,  or  conunit  him.  as  for 
contempt,  for  refusing  to  <lo  so.  If  that  court  ^^  as  without  jurisdiction,  by 
rciuson  of  tlu-  i)aramount  authority  of  the  constitution  and  laws  of  the 
United  States,  to  compel  the  plaintiff  in  error,  in  response  to  the  writ  of 
liahcds  curpiiH,  to  |)roduce  flu-  prisoner,  then  his  conunittal  for  contempt 


228 


AMERICAN  CRIMINAL  REPORTS. 


Wiis  the  denial  of  a  right,  privilege  and  iinniunity  secured  by  the  snjircmo 
law  of  tlie  land.  The  claim  by  the  plaintiff  in  error  tliat  there  was  such  a 
denial  constitutes  the  foundation  of  our  jurisdiction. 


"From  this  review  of  former  decisions  it  is  clear  that  the  (|uestioii  now 
pros(>nted  has  never  been  dcti'rmined  by  this  court.  In  Ahlciimn  r.  Umilh. 
21  How.,  .WO,  the  jn-isoner,  as  we  have  seen,  was  held  in  custody  by  an  ufli- 
c<»r  of  the  United  States,  iuhUt  a  warrant  of  cf)mnii(incnt  from  a  commis- 
sioner of  a  circuit  court  of  the  United  States,  for  an  olfensc  against  the  laws 
of  the  general  government.  In  United  Stutcn  r.  Booth,  21  How.,  '>W,  lie 
was  in  custody  in  pursuance  of  a  Judgment  of  a  court  <>f  the  United  States 
founded  upon  an  indictment  charging  liim  with  an  olfensc  aij;ainst  the  laws 
of  the  United  States.  In  Tarblc's  C(ist\  i:\  Wall..  :WT.  the  person  wIkisc 
discliarge  was  sought  was  held  as  an  enlisted  soldier  of  the  army  by  an  olii- 
oer  of  that  army  acting  directly  under  tlic  constitution  and  laws  of  the 
Uniteil  States. 

"No  such  (|uestions  are  here  presented,  unless  it  be,  as  claimed,  th;it  the 
plaintiff  in  error  is,  within  the  iirinciples  of  former  adjudications,  an  otlicer 
of  the  United  States,  wielding  the  authority  and  executing  the  power  of  the 
nation.  We  are  all  of  oi)inion  that  he  was  not  smli  an  oliicer,  but  was  and 
Ls  simply  an  agent  of  the  stati'  of  Oregon,  invested  with  authority  to  re- 
ceive, in  her  behalf,  an  alleged  fugitive  from  the  Justice  of  that  state.  By 
tlie  very  terms  of  the  statute  under  which  the  executive  authority  of  Ore- 
gtm  demanded  the  arr»>st  and  surrender  ol'  tlie  fugitive,  he  is  described  as 
the  '  agent  of  such  authority."  It  is  true  that  tiie  execntivi-  authority  ol  tin' 
state  in  which  the  fugitive  has  taken  refu;;c  is  umlei-  a  duly  imposed  by  the 
constitution  and  laws  of  the  Unite(l  States  to  cause  his  siuTcniler  upon 
pro])er  demand  by  the  executive  atithority  of  the  state  from  which  he  lias 
fled.  It  is  ecjually  true  that  the  authority  of  the  agent  of  the  demanding 
state  to  bring  the  fugitive  within  its  territorial  lini'is  is  expret.sly  conferred 
by  tlie  statutes  of  the  United  States,  aixl,  therefore,  while  so  transporting 
him,  he  is,  in  a  certiiin  sense,  in  the  exercise  of  an  authority  derived  from 
*he  United  States.  But  these  circumstaTices  do  not  constitute  him  an  olii- 
cer of  the  United  States,  within  the  meaning  of  former  decisions.  He  is 
not  appointed  by  the  United  States,  and  owes  no  duly  to  the  national  gov- 
ernment for  K  violation  of  whii-h  he  maybe  punished  by  its  tribunals  or 
removi'd  from  olHce.  His  authority,  in  the  lirst  instance,  comes  from  the 
state  in  which  the  fugitive  stands  chai'ged  with  crime.  He  is  in  every  siih- 
stantial  sense  her  agent,  as  well  in  receiving  custody  of  the  fugitive  as  in 
transporting  him  to  the  state  under  whose  connnission  he  is  acting.  What 
he  does,  in  execution  of  that  authority,  is  to  the  end  that  the  violation  ol 
the  laws  of  his  state  may  be  puiushecl.  The  fugitive  is  arrested  and  traii>- 
ported  for  an  otfense  against  her  laws,  not  for  an  olfense  against  the  United 
States.  The  essential  dilTerence,  therefore,  between  the  ca.ses  heretofore 
detiM'niined,  and  the  present  one,  is,  that  in  the  formi'r  the  Jiulicial  author- 
ities of  the  state  claimed  and  exerciseil  the  rif;ht,  upon  Imhfdn  coriiiis.  in 
release  persons  lu'ld  in  custoily  in  pursiuince  of  tla'  Judgment  of  a  eourt  ol 
the  Uiuted  States.  f)r  by  order  of  a  circuit  cmu't  <'ommissioner,  or  l>y  oliicer? 
of  the  United  States  in  execution  of  their  laws;  while,  in  the  pri'sent  casi'. 


^pp 


EX  PARTE  REGGEL. 


229 


the  person  who  sued  out  the  ^^Tit  was  in  custody  of  an  agent  of  another 
state,  cliarged  with  an  offense  against  her  laws. 

"  Underlying  the  entire  argument  in  liehalf  of  the  jdaintiff  in  error  is 
the  idea  that  the  judicial  trihunals  of  the  states  are  excluded  altogether 
from  the  consideration  and  determination  of  ([uestions  involving  an  au- 
thority, or  a  right,  privilege  or  inniiuiiity,  derived  from  the  constitution  and 
laws  of  the  United  States.  But  this  view  is  not  sustained  by  the  statutes 
detiiung  and  regulating  the  Jurisdiction  of  the  coiirts  of  the  United  Slides. 
In  establishing  those  courts,  congress  has  taken  care  not  to  exclude  llie 
jurisdiction  of  tlie  state  courts  from  every  case  to  which  by  the  constitution 
the  Judicial  power  of  the  United  States  extends.  In  the  judiciary  act  «jf 
17H!».  it  is  declared  that  the  circuit  coiu'ts  of  the  Unite<l  States  shall  have 
original  cognizance,  '  concurrent  with  the  courts  of  the  several  states,'  of 
all  suits  of  a  civil  nature,  at  coimnon  law  or  in  ecjuity,  involving  a  certain 
amount,  in  wnich  the  United  States  are  plaintiffs  or  jtetitionera,  or  an  alien 
is  a  ])arty,  or  the  suit  is  between  a  citizen  of  the  state  where  the  suit  is 
brought  and  a  citizen  of  another  state.  Hy  section  711  of  the  Revised  Stat- 
utes of  the  United  States,  iis  amemled  by  the  act  of  February  18,  1S75, 
jurisdiction,  exclusive  of  the  courts  of  the  several  states,  is  vested  in  the 
courts  of  the  United  States  of  all  crimes  and  offenses  cognizable  under  tlie 
authority  of  the  United  States;  of  all  suits  for  penalties  and  forfeitures  in- 
curred under  their  laws;  of  all  civil  causes  of  admiralty  and  mai'itime 
jurisdiction ;  of  all  cases  arising  under  the  patent  riglit  or  copyright  laws  of 
the  United  States;  of  all  matters  nnd  j)roceedings  in  bankruptcy;  and  of  all 
controversies  of  a  civil  nature,  where  a  state  is  a  party,  except  between  a 
state  and  its  citizens,  or  between  a  state  and  citizens  of  other  states  or 
aliens;  the  Jiu'isdiction  of  the  states  remaining  unaffected  in  all  other  cases 
to  which  the  Judicial  power  of  the  Uniteil  States  may  be  extended.  And 
by  the  act  of  March  il,  1H75,  the  original  Jurisdiction  of  the  circuit  Courts 
of  the  United  States  is  enlarged  so  as  to  embrace  all  suits  of  a  civil  nature, 
at  comm(»n  law  or  (Mjuity,  involving  a  certain  amount,  arising  under  the 
constitution  oi-  laws  of  the  United  States,  or  treaties  made,  or  which  ^hall 
be  made,  under  their  authority,  or  in  which  the  United  Stati's  are  jilaintiffs 
or  petitioners,  or  in  which  there  shall  be  a  controversy  between  citizens  of 
ditfcrent  states,  or  a  controversy  between  citizens  of  the  same  titate  claim- 
ing lands  under  giants  »d'  different  states,  or  a  controversy  between  citizens 
of  a  stall'  and  foreign  states,  citizens  or  siibjects.  But  it  is  exju'essly  de- 
clared that  in  such  cases  their  Jurisdiction  is  '  conciuTcnt  with  the  courts 
ftf  the  several  states' — the  jiuMs<liction  of  the  latter  courts  being,  of  course, 
subject  to  the  right  to  remove  the  suit  into  the  proper  court  of  tin-  L'nited 
States,  at  the  time  and  in  the  mode  prescrilted,  and  to  the  appellate 
power  of  this  court,  as  establislied  and  regulateil  by  the  constitution  and 
laws  of  the  Unite<l  States.  So,  that  a  state  court  of  original  Jurisdiction, 
having  the  parties  before  it,  ma\,  consistently  with  existing  federal  legis- 
lation, determine  cases  at  law  or  in  e(iuity,  arising  under  the  constitution 
or  laws  of  the  United  States,  or  involving  rights  dei»endent  upon  such  con- 
stitution or  laws.  UjMtn  the  state  courts,  e(|ually  with  tiie  courts  of  the 
Union,  rests  the  ol)ligation  to  guard,  enforce  and  protect  every  right  granted 
or  secured  bv  tlie  constitution  of  the  United  States  and  the  laws  made  in 


I 


230 


AMERICAN  CRIMINAL  REPORTS. 


K 


pursuance  thereof,  wlienever  those  rights  aro  involved  in  any  suit  or  pro- 
oeoKling  before  them ;  for  the  judges  of  tiie  state  courts  are  required  to  take 
an  oath  to  support  timt  constitution,  and  they  are  bound  by  it,  and  tiie  laws 
of  the  United  States  made  in  jjursuance  tliereof ,  and  all  treaties  made  under 
tlieir  authority,  as  the  supreme  law  of  the  land,  'anything  in  the  constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstanding.'  If  they  fail 
t.erein,  and  withhold  or  deny  rights,  privileges  or  immunities  secured  by 
tlie  constitution  and  laws  of  the  United  States,  the  party  aggrieved  may 
bring  the  case  from  the  highest  court  of  the  state  in  which  the  question 
could  be  decided  to  this  court  for  final  and  conclusive  determination. 

"  The  recognition,  therefore,  of  the  authority  of  a  state  court,  or  of  one  of 
its  judges,  upon  writ  of  habeas  cnrjmn.  to  pass  nyton  the  legality  of  the  impris- 
onment, within  the  territory  of  that  state,  of  a  person  held  in  custody  — 
otherwise  than  under  the  judgment  or  orders  of  the  judicial  tribunals  of  the 
United  States,  or  by  the  order  of  a  coinmibsioner  of  a  circuit  court,  or  by 
officers  of  the  United  States  acting  under  their  laws, —  cannot  be  denied 
merely  because  the  i)roceedings  involve  the  determination  of  rights,  privi- 
leges or  immunities  derived  from  the  nation,  or  require  a  construction  of  the 
constitution  and  laws  of  the  United  States.  Congress  has  not  luidertaken 
to  invest  the  judicial  tribunals  of  the  United  States  with  exclusive  jurisdic- 
tion of  issuing  writs  of  habeas  corpus  in  proceedings  for  the  arrest  of  fugi- 
tives from  justice,  and  their  delivery  to  the  authorities  of  the  state  in  which 
they  stand  charged  with  crime.  When  a  demand  has  l)een  made,  in  accord- 
ance with  the  constitution  of  the  United  States,  by  the  state  from  which 
the  fugitive  has  fled,  upon  the  executive  authority  of  the  state  in  which  he 
is  found,  that  instrument,  indeed,  makes  it  the  tluty  of  the  latter  to  cause 
liis  arrest  and  surrender  to  the  executive  authority  of  the  demanding  state, 
or  to  the  agent  of  such  authority.  But  if  it  should  appear,  upon  the  face  of 
the  warrant  issued  for  the  arrest  of  the  fugitive,  tliat  such  demand  was  not 
accompanied  or  supporteil  by  a  co])y,  certified  to  be  authentic,  of  any  indict- 
ment found  against  the  accused,  or  of  any  afiidavit  made  before  a  magis- 
trate of  the  demanding  state,  charging  the  commission  by  him  of  some  crime 
iu  the  latter  state,  could  it  be  claimed  that  the  arrest  of  the  fugitive 
would  be  in  pursuance  of  the  acts  of  congress,  or  that  the  agent  of  the  de- 
manding state  liad  authority  from  the  United  States  to  receive  and  hold  him 
to  be  transported  to  that  state? 

"  Tills  question  could  not  be  answered  in  the  affirmative,  except  upon  the 
8U[<position,  not  to  be  indulged,  that,  so  far  as  the  constitution  and  the  leg- 
islation of  congress  aro  concerned,  the  transporting  of  a  jierson  beyond  the 
limits  of  the  state  in  which  he  resides,  or  happens  to  be,  to  another  state, 
depends  entirely  upon  the  arbitrary  will  of  the  executive  authorities  of  the 
state  demanding  and  of  the  state  surrendering  him.  Whether  the  warrant 
of  arrest  issued  by  the  governor  of  California  for  the  arrest  of  Bayley  ap- 
peared, upon  its  face,  to  be  authorized  and  required  by  the  act  of  congress: 
that  is,  whether,  upon  its  face,  a  case  was  made  behind  which  the  state 
courts  or  officers  could  not  go,  consistently  with  the  constitution  and  laws 
of  the  United  States,  are  questions  upon  which  it  is  unnecessary  to  express 
an  opinion.  What  we  decide  —  and  the  present  case  requires  notliing  more  — 
is,  that,  so  far  as  the  constitution  and  laws  of  the  United  States  are  con- 


EX  PARTE  REGGEL. 


231 


Of rned,  it  is  competent  for  the  courts  of  the  state  of  California,  or  for  any 
of  her  judges  having  power  under  her  laws  to  issue  writs  of  habeas  corpus, 
to  determine,  uiion  writ  of  habeas  corpus,  whether  the  warrant  of  arrest  and 
the  delivery  of  the  fugitive  to  the  agent  of  the  state  of  Oregon  were  in  con- 
formity with  the  statutes  of  the  United  States ;  if  so,  to  remand  him  to  the 
custody  of  the  agent  of  Oregon,  And  since  the  alleged  fugitive  was  not,  at 
the  time  the  writ  in  question  issued,  in  the  custody  of  the  United  States,  hy 
any  of  their  tribunals  or  officere,  the  court  or  judge  issuing  it  did  not  violate 
any  right,  privilege  or  immunity  secui'ed  by  the  constitution  and  laws  of  the 
United  States  in  requiring  the  production  of  the  body  of  the  fugitiv*'  upon 
the  hearing  of  the  return  to  the  writ,  to  the  end  that  he  might  be  discharged 
if,  ujxjn  hearing,  it  was  adjudged  that  his  detention  was  unauthorized  by 
the  act  of  congress  providing  for  the  arrest  and  suiTcnder  of  fugitives  from 
justice,  or  by  the  laws  of  the  state  in  which  he  was  found.  The  writ  was 
without  value  or  effect  unless  the  body  of  the  accused  was  produced.  Sub- 
ject, then,  to  the  exclusive  and  paramount  authority  of  the  national  govern- 
ment, by  its  own  judicial  tribunals,  to  determine  whether  persons  held  in 
custody  by  authority  of  the  courts  of  the  United  States,  or  by  the  com- 
missioners of  such  courts,  or  hy  officers  of  the  general  government,  acting 
under  its  laws,  are  so  held  in  conformity  with  law,  the  states  have  the  right, 
by  their  own  courts,  or  by  the  judges  thereof,  to  inquire  into  the  ground? 
ujMin  wliicli  any  person  within  their  respective  teiTitorial  limits  is  restrained 
of  liis  liberty,  antl  to  discharge  him  if  it  he  ascertained  that  such  restraint 
is  illegal;  and  this,  notwithstanding  such  illegality  may  arise  from  a  viola- 
tion of  the  constitution  or  the  laws  of  the  United  States. 

"  It  is  proper  to  say  that  we  have  not  overlooked  the  recent  elaborate 
opinion  of  the  learned  judge  of  the  circuit  court  of  the  United  States  for  the 
district  of  California  in  In  re  Robb,  19  Fed.  Rep.,  26.  But  we  have  not  been 
able  to  reach  the  conclusion  announced  by  him. 

"For  the  reasons  we  have  st.ited,  and  without  considering  other  questions 
discussed  by  counsel,  the  judgment  of  the  supreme  court  of  California  must 
Ik'  affirmed." 

In  In  re  Roberts,  24  Fed.  Rep.,  132,  it  is  held  that  the  federal  and  state 
courts  have  concurrent  jurisdiction  in  cases  of  extradition ;  that  the  judg- 
ments of  the  latter  do  not  conclude  the  former,  on  this  federal  question,  but 
are  entitled  to  great  respect,  and  are  strongly  advisory.  As  already  stated 
in  substance,  the  judgment  of  the  supreme  court  of  the  United  States  on  a 
question  of  this  nature  is  conclusive,  not  only  upon  the  federal  courts  sub- 
ordinate to  the  supreme  court,  but  on  the  state  courts  as  well ;  and  when 
such  a  question  has  been  directly  passed  upon  by  the  supreme  tribunal  of 
the  nation,  the  state  cotu'ts  are  as  capable  of  construing  the  meaning  of  the 
decision  on  the  point  at  issue  as  the  inferior  federal  courts.  If  an  inferior 
state  court  commits  an  error  in  its  decision,  the  remedy  is  by  appeal  to  the 
supreme  court  of  the  state;  and  when  a  federal  question  is  involved,  a  writ 
of  error  may  l)e  prosecuted  to  that  court  from  the  supreme  court  of  the 
United  States. 

Potcer  of  governor  to  extradite  and  how  derived. — In  Ex  parte  Morgan, 
20  Fed.  Rep.,  298,  wluch  was  a  jjetition  for  a  writ  of  habeas  corpus  to  the 
district  court  of  the  United  States,  western  district  of  Arkansas,  in  which. 


1<'V'. 


if-t 


232 


AMERICAN  CRIMINAL  REPORTS. 


among  other  tilings,  the  petitioner  ^stated  that  by  virtue  of  a  recpiisition 
issued  by  the  principal  chief  of  the  Cherokee  nation  and  the  governor  of  tlie 
state  of  Arkansas,  the  said  governor  did,  on  the  18th  day  of  August.  ISPR, 
issue  his  warrant  directed  to  the  sherilT,  etc.,  for  the  arrest  of  petitioner  for 
the  crime  of  murder;  that  on  the  11th  day  of  Septcinbcr,  1888,  the  saiil 
sheriff,  by  virtue  of  the  said  warrant,  arrested  the  i)etitioner  and  now  has 
him  in  custody  for  the  purpose  of  delivering  him  into  the  custody  of  tlic 
authorities  of  the  Cherokee  nation;  that  the  sai<l  re(iuisition  so  made  by  the 
chief  of  said  nation  was  issueil  without  any  authority  of  law  or  treaty  sti}!- 
ulations  between  the  United  States  and  the  said  nation;  that  the  warrant 
of  arrest  issued  by  the  governor  of  tlie  state  was  issued  without  autliority 
of  law:  that  the  jn-isoner  was  restrained  of  his  liberty,  etc.  To  tliis  writ 
the  sheriff  made  return,  setting  forth  the  warrant  of  arrest  issue<l  by  tlie 
governor  of  Arkansius  upon  a  re(iuisition  of  the  principal  cliief  of  tlie 
Cherokee  nation,  etc.,  duly  certified  copies  of  the  reciuisitiou  and  di-mand 
and  warrant  accompanying  the  same,  etc.  To  this  return  the  iictitiuinr 
filed  a  demurrer  and  answer.  The  dcnnurer  set  forth  that  the  response  of 
the  sheriff  and  acconifianying  documents  do  not  show  facts  to  authorize  the 
custodj'  and  ini))risonment  of  petitioner. 

Parker,  J.,  discussing  the  power  of  the  executive  of  a  state  to  issue  war- 
rants for  the  arrest  of  fugitives  fnjm  justice,  held  that  tlie  power  of  tlio 
governor  under  the  law  as  it  now  stands  to  extradite  a  person  from  his  state 
must  be  found  in  the  constitution  Jind  laws  of  the  Unlteil  States.  "  If  it  is 
not  there,  it  does  not  exist.  Not  oidy  the  power,  but  the  manner  of  its  exer- 
cise, is  based  exclusively  on  the  constitution  of  the  United  States  and  tlie  law 
of  congress  in  pm-suance  thereof.  Interstate  extradition  is  regulated  l)y  law. 
No  such  power  can  ever  bo  exercised  by  the  chief  executive  of  a  state,  on 
the  ground  of  comity.  Rorer,  Interstate  Law,  225.  Nor  has  it  ever  been, 
in  this  country,  projjerly  and  legally  exercised  on  such  ground.  Comitj'  may 
and  does  afford  a  strong  reason  for  the  enactment  of  laws  providing  for  the 
extr.'ulitioii  of  criminals,  that  they  may  be  brought  to  justice  and  socit'ty 
thus  iirotected.  But  we  nmst  look  to  the  lasv  for  tiie  right  to  exercise  this 
extraordinary  power."  The  court,  after  discussing  the  history  of  the  extra- 
dition treaty  among  the  colonies,  the  clause  inserted  in  tlie  articles  of  con- 
federation, the  constitutional  provision  and  the  laws  of  congress  pass(>d  in 
conformity  therewith,  came  to  the  conclusion  that,  as  the  Clierokee  nation 
is  neither  a  state  nor  territory,  in  the  sense  to  be  attaciied  to  the  words  when 
used  in  the  clause  of  the  constitution  and  in  the  act  of  congress  relating  to 
interstate  extradition,  the  governor  of  Arkansas  could  not,  under  the  con- 
stitution and  laws  of  the  United  States,  issue  a  warrant  fin*  the  arrest  of 
Morgan  upon  the  demand  of  the  chief  of  the  Cherokee  nation. 

Ill  Holnics  i".  JcnuiNoii,  14  Peters,  540,  it  wius  conceded  that  the  states  may 
remove  from  among  them  any  person  guilty  of,  or  charged  with,  crime, 
and  may  arrest  and  imi)rison  him  in  order  to  effect  this  object.  "Tliis  is  a 
part  of  the  ordinary  [loliee  powers  of  the  states,"  says  Taney,  C.  J.,  "  which 
is  necessary  to  their  vtuy  existence,  and  which  they  have  never  surrendered 
to  the  general  government.  Tlii-y  niay,  if  they  think  jiroper,  in  order  to 
deter  offenders  in  other  countries  from  coming  among  them,  make  crimes 
committed  elsewhere  punishable  in  their  com'ts,  if  the  guilty  party  shall 


mr. 


M 


EX  PARTE  RE{}GEL. 


233 


■'Ml 


be  found  within  their  jurisilictioii.  In  all  of  those  cases  the  state  acts  with 
a  view  to  its  own  safety,  and  is  in  no  defjree  connected  with  the  foreign  gov- 
ernment in  wiiich  tlie  crime  wa.s  committed.  The  state  does  not  co-ojjcrate 
with  a  foreign  government,  nor  hold  any  intercourse  with  it,  wlien  slie  is 
merely  executing  her  ]M)lice  regulation.  But  in  the  case  of  Holmes  it  is 
otherwise.  The  state  acts  not  with  a  view  to  i)rotect  itself,  hut  to  assist 
another  nation  wliich  aslcs  its  aid.  Hohnes  is  not  removed  from  the  state 
of  Verm<mt  as  a  man  so  stainecl  with  crimes  as  to  render  him  unworthy  of 
the  hosi)itality  of  the  state;  hut  lie  is  delivered  ui)  to  the  Canadian  autlior- 
ities  as  an  act  of  comity  to  them.  Tiiis  is  not  the  exercise  of  a  police 
jiower,  which  ojK'rates  only  upon  the  internal  concerns  of  th(>  sttite  and  re- 
quires no  intercourse  with  a  foreign  country  in  order  to  carry  it  into  execu- 
tion;  it  is  the  comity  of  one  nation  to  another,  acting  upon  the  laws  of 
nations,  and  determiiiiiig  for  itself  how  far  it  will  assist  a  foreign  nation  in 
hringing  to  jmiiislmicnt  those  wlio  have  otfeniled  against  its  laws."  After 
(li.scnssing  tlif  several  constitutional  jyrovisions  in  regard  to  tlie  treaty- 
niai<iiig  power  of  the  feder;il  government  and  in  regard  to  the  jurisdiction 
of  the  federal  courts  to  review  the  action  of  the  state  courts  under  tlie  ju- 
diciary act,  Taney.  ('.  J.  (Story.  Jhr,ean  and  Wayne,  JJ.,  concurring), 
after  tlie  most  careful  and  deliberate  examinatitin  of  the  (juestion,  lield  that 
the  jHiwer  to  siirrendiM-  fugitives,  who.  having  committed  offenses  in  a 
foreign  country,  Iiave  fled  to  this  for  shelter,  helongs,  under  the  constitu- 
tion of  the  United  States,  exclusivi'ly  to  the  federal  government:  that  the 
authority  exercised  iu  this  instance  by  the  governor  of  Vermont  is  repug- 
nant to  the  constitution  of  the  United  States:  and  that  the  judgment  of  the 
supreiiu?  court  of  Vermont  refusing  to  discliargi-  Holmes  under  the  habeas 
ciiriiiiK  issued  at  his  instance  ought  to  be  reversed.  But  as  the  cfmrt  was 
dividiMl  ill  opinion  (5I(d\inley,  J.,  not  taking  jiart  in  th(>  decision),  a  different 
judgment  was  entered,  mainly  on  the  ground  that  the  court  had  no  juris- 
diction under  the  judiciary  act  of  a  writ  of  error  to  a  state  court  to  revise 
its  decision  ujion  a  writ  of  tidhcds  corpus  remanding  a  prisoner  to  the  cus- 
tody of  a  sh(>ri(f  to  be  delivered,  undt'r  a  warrant  from  the  gos'ernor  of  the 
state,  to  the  autliorities  of  a  foreign  country,  to  be  there  tried  for  an  alleged 
murder. 

Under  the  ju-esent  state  of  the  decisions  it  would  seem  that  if  the  supreme 
court  of  the  state  where  the  fugitive  from  justice  is  found  should  sustain 
the  action  of  tlie  governor  in  issuing  his  warrant  of  arrest  on  the  demand 
of  a  foreign  nation,  the  fugitive  would  have  no  redress  by  writ  of  error  or 
otherwise  to  tlie  state  court  from  the  supreme  court  of  tiie  United  States, 
unless  a  majority  of  the  court  as  now  constituted  would  take  the  same  view 
of  the  <|uestion  as  was  taken  by  Taney,  C.  J.,  and  the  three  judges  who 
concurred  with  him  in  HohiWH  v.  Jciinison. 

Rcvicirhig  /(U-fs  found  b>j  vifvrior  court. —  In  In  re  Fowler,  4  Fed.  Rep., 
303,  Blatchford,(^  .I.,held  that  the  decision  of  the  United  States  commissioner 
as  to  the  fact  of  the  criminality  of  the  accused,  in  a  case  of  extradition, 
cannot  be  reviewed  by  the  circuit  court  on  a  writ  of  liabed.t  corpim.  The 
relator  in  this  case  was  arrested  and  brought  before  tlie  commissioner 
under  a  charge  of  having  committed  forgery  at  Bradford  in  England,  and 
the  proceedings  were  under  the  extradition  treaty  between  the  United 
States  and  (ireat  Britain. 


i 


284 


AMERICAN  CRIMINAL  REPORTS. 


In  In  re  Kaine,  14  How.,  103,  it  is  held  that  where  a  marshal  of  the  United 
States,  under  an  order  of  a  commissioner,  held  the  petitioner,  for  tlip  pur- 
pose of  making  extradition  of  him  as  a  fugitive  from  justice  under  the 
treaty  between  tlie  United  States  and  Groat  Britain ;  and,  u]K>n  a  habeas 
corpus,  a  circuit  court  of  tlie  United  States  held  the  commissioner's  proceed- 
ings legal,  on  application  to  this  court  for  a  writ  of  habeas  corpus,  Jus- 
tices McLean,  Wayne,  Catron  and  Grier  held  the  decision  of  tlie  circuit 
court  to  be  correct.  The  chief  justice  and  Justices  Daniel  and  Nelson  took 
a  contrary  view,  and  held  it  to  be  erroneous.  Mr.  Justice  Curtis  tlionj^ht 
that  this  court  had  not  jurisdiction  to  issue  a  writ  of  habeas  corpus  in  such 
cases. 

The  complaint  and  loarrant. —  A  complaint  and  warrant  in  an  extradition 
case  should  show  upon  their  face  that  the  commissioner  issuing  the  warrant 
is  duly  empowered  to  act  in  cases  of  that  description.  A  complaint  made 
simply  upon  information  and  lielief  is  fatally  defective,  and  gives  the  com- 
missioner no  jurisdiction.    Ex  parte  Lion,  6  Fed.  Rep.,  34. 

An  affidavit  upon  information  and  belief  does  not  satisfy  the  ro<iuiie- 
ments  of  the  law  in  this  respect.  The  removal  of  a  person  from  one  state 
as  a  fugitive  from  the  justice  of  another  is  a  matter  of  the  highest  inijior- 
tance.  Such  removal  cannot  be  made  upon  less  evidence  of  the  party's  guilt 
and  flight  than  would  authorize  a  warrant  and  arrest  in  an  ordinary  case, 
It  should  give  probable  cause  to  believe  that  the  person  demanded  has 
committed  a  j^articular  crime  against  the  law  of  the  state  making  the 
demand,  and  that  lie  has  fled  therefrom  on  that  account.  Ex  parte  Smith, 
3  McLean,  121 ;  E.v  parte  Thornton,  9  Tex.,  635;  In  re  Doo  Woon,  18  Fed. 
Rej).,  898;  E.v 2)urfe  Morgan,  20  Fed.  Rep.,  298. 

Authentication  of  documents. —  As  to  authentication  of  documents  under 
acts  of  congress  in  extradition  proceedings  with  reference  to  fugitives  from 
justice  under  treaties  with  foreign  nations,  see  In  re  Behrendt,  23  Fed. 
Rep.,  699;  In  re  Extradition  of  Wadge,  alias  Archer,  16  Fed.  Rep.,  232. 


State  v.  Lukch. 

(12  Oregon,  95.) 

False    pretenses:   Promis.wry   note  —  Signature  —  Evidence  —  Maker f^ 
name  subscribed  by  another  under  authority. 

1.  Upon  the  trial  on  an  indictment  for  obtaininq  money  under  thk 

FALSE  pretense  that  a  certain  promissory  note  was  genuine,  the  ac- 
cused may  offer  testimony  to  show  that  the  names  subscribeci  to  such 
notes  luul  been  written  by  himself,  under  instructions  of  the  parties 
whom  he  had  represented  as  the  makers. 

2.  Promissory  note  —  Genuineness  of  note  subscribed  by  direction  of 

the  apparent  maker.—  a  promissory  note,  to  which  the  name  of  the 
apparent  maker  hiis  been  subscribed  by  anotlier  party,  under  the 
instructions  of  such  apparent  maker,  is  a  genuine  note,  and  will  bind 
the  party  giving  such  directions. 


STATE  V.  LURCH. 


235 


Lane  county.    Defendant  appeals.    Reversed  and  new  trial 
ordered. 


m 


W.  R.  Willis,  for  appellant. 

J.  W.  Hamilton,  district  attorney,  and  Geo.  S.  Washhnrne,  for 
respondent. 

Loud,  J.  The  defendant  was  indicted,  tried  and  convicted 
for  obtaining  money  under  false  pretenses.  The  Criminal  Code 
provides  that  "  upon  a  trial  for  having,  by  any  false  pretense, 
obtained  the  signature  of  any  person  to  any  written  instrument, 
or  obtained  fi'oni  .my  person  any  valuable  thing,  no  evidence 
can  bo  admitted  of  a  false  pretense  expressed  orally  and  unac- 
companied by  a  false  token  or  writing,  but  such  pretense,  or 
some  note  or  memorandum  thereof,  must  be  in  writmg,  and 
either  subscribed  by  or  in  the  handwriting  of  the  defendant." 
Code,  p.  3<>2,  §  173. 

The  substance  of  the  allegation  is  that  the  defendant,  in- 
tending to  cheat  and  defraud  I'lujobe  B.  Kinsey  of  her  money 
and  property,  falsely  and  feloniously  did  pretend  and  represent 
that  a  certain  instrument  in  writing,  purporting  to  he  a  prom- 
issory note,  was  the  genuine  promissory  note  of  Lurch  I'ros., 

A.  II.  Spare  and  Samuel  Dillard;  that  the  two  signatures  to 
the  said  note,  purporting  to  be  the  signatures  of  the  said  Spare 
and  Dillard,  were  the  true  and  genuine  signatures  of  the  said 
Spare  .and  Dilhird;  and  that  the  said  Spare  and  Dilliird  had 
signed  the  said  note  as  security  for  the  payment  of  the  s.ame, 
when  in  truth  an<l  fact  the  said  note,  pur])orting  to  be  the  note 
of  Lurch  Ih'os.,  and  signed  by  the  said  Spare  and  Dillard,  was 
not  the  genuine  note  of  the  said  Spare  and  Dillard,  or  either 
of  them,  nor  their  true  or  genuine  signatures,  or  either  of  them, 
but  were  forgeries,  which  fact  the  said  defendant  well  knew, 
etc.,  ...  by  means  of  which  said  false  pretense  and  pre- 
tenses the  said  defendant  did  then  and  there,  etc.,  unlawfully, 
knowingly  and  feloniously  obtain  from  the  said  Phwhe  B.  Kin- 
sey $5)00,  etc.,  with  intent  to  cheat  and  defraud  the  said  Pha'be 

B.  Kinsey  of  her  goods  and  money. 

By  the  bill  of  exceptions  it  appears  that  the  state,  to  main- 
tain the  issue  upon  its  ])art,  called  as  a  witness  Mi's.  Phoebe  B. 
Kinsey,  who  testiiled  that  on  December  15,  1883,  Mr.  Wash- 


r«ff? 


230 


AMERICAN  C:RnilNAL  REPORTS. 


If.  I 


burne,  her  agent  and  attorney,  came  to  lier  honse  with  the 
defendant  and  said  that  the  (h'fendant  wanted  to  borrow  s'.tuo; 
that  she  asked  ^Ir.  Washbunie  what  security  tlie  (U'fondant 
couUl  give,  and  lie  said  \w  could  give  the  note  of  Lurch  Mros.. 
with  Samuel  Dillard  and  A.  II.  Spare  as  security.  The  witness 
was  then  asked  what  the  defendant  Lurch  said  to  her  in  regard 
to  getting  Dillard  and  Spare  to  sign  the  note,  smd  answered 
that  he  told  her  that  he  wouhl  t.'ke  the  note  to  Cottage  <irov(> 
and  have  it  signed  by  Dillard  and  Spare,  and  retui-n  it  next 
Monday;  this  was  on  Saturday.  AVashburne.  being  called,  tos 
tilled  in  substance  that  the  defendant  came  to  his  olfice  and 
wanted  to  borrow  !?70(i  to  $lt(t(i:  that  he  told  him  that  Mrs. 
Kinsey  had  some  money  to  loan,  and  that  they  went  to  see 
her,  and  that  she  said  that  she  would  let  the  defendant  have 
the  money  if  I  apjn'oved  of  the  security.  IJeing  asked  what 
security  the  defendant  said  he  could  give,  the  witness  answered 
that  the  defendant  said  he  could  give  Spare  and  Dillard.  He 
was  then  asked,  "AVhat  did  Lurch  say  at  the  time  in  regai-d  to 
getting  Spare  and  Dillard  to  sign  the  note  themselves  r'  and 
answered  tliat  the  defendant  said  that  he  would  take  the  note 
to  Cottage  (irove  and  get  Dillard  ami  Spare  to  sign  it,  and  re- 
turn it  on  Monday.  "lie  came  l)ack  ^Fonday  with  the  note, 
and  also  with  some  notes  as  collaterals.  1  took  the  notes  and 
collaterals,  and  gave  him  the  money,  ^ixio."  A.  II.  Spare, 
being  called,  testified  that  he  did  not  sign  the  n<>te  described 
in  the  indictment,  and  did  not  give  any  person  authority  to 
sign  it.  Samuel  Dillard.  being  calhid.  also  testilied  that  he  did 
not  si<m  the  note,  and  never  authorized  anv  one  to  siirn  the 
note.  Some  exceptions  were  taken  to  this  evidence,  and  other 
evidence  offered  and  received,  but  the  jnu-poses  of  this  case  do 
not  nMpiire  us  to  note  them. 

The  defense  then  olfered  to  j)rove  by  the  defendant  that  the 
signatures  of  A.  II.  Sjtare  and  Samuel  Dillard  upon  the  note 
were  written  by  the  <lefendant,  under  the  direction  and  author- 
ity of  A.  IL  Spai'e  and  Samuel  Dillard.  This  was  objected  to, 
and  the  exception  taken  involves  tlujgroimd  of  ei'ror  upon  this 
appeal.  The  evidence  shows  that  tlie  defendant  represented 
that  he  could  give  these  names  as  security  for  the  ])ayment  of 
the  note,  and  it  was,  in  fact,  the  I'eliability  of  these  names  which 
induced  Mrs.  Kinsey  to  purchase  the  note.    It  was  the  security 


ml 


STATE  V.  LURCH. 


237 


she  was  concerned  about,  and  these  wei-e  the  names  the  do- 
tV'iidaiit  ofTered.  Subsequently,  when  tlie  note  was  pi-esented 
witli  tlieir  signatures,  or  what  purported  to  be  th(!ir  si^jiiiutures, 
the  note  was  accepted,  and  tlie  money  tlius  obtained.  Dilhird 
and  S})are  botii  testified  that  they  did  not  si^n  the  note,  nor 
give  any  autiiority  to  any  one  to  put  tlieir  signatures  to  it.  In 
tiie  opening  of  the  case,  the  (h'fcndant  Iiad  achnitted  thiit  lit' 
had  written  the  names  ot"  Spare  and  Dilhird  upon  the  note,  but 
by  the  direction  and  authority  of  eacii  of  them.  This,  liow- 
ever,  was  inunaterial;  for  the  record  discloses  a  case  had  l)een 
made  against  the  defendant  unless  he  couhl  obviate  the  etl'ect 
of  this  evidence.  Now,  it  seems  to  us  it  must  be  conceded,  if 
both  Sparc;  aiul  Dilhird  <lid  dii-ect  and  authoi'i/e  the  defendant 
to  put  their  names  or  signatures  to  the  note,  it  became  their 
biiuling  obligation.  ui)on  which  they  were  liable,  and  ^Frs.  Iv. 
got  what  she  bought  or  contracted  for.  Although  the  manual 
or  physical  act  of  writing  the  names  was  not  theirs,  it  became 
so  by  their  direction,  consent  ami  authority,  and  was,  in  legal 
elfect.  their  signatures.  Their  dii'ection  to  sign  their  names 
was  a  si^i'iiin"'  bv  them,  and  in  such  case  the  signatures  would 
Tiot  be  forgeries,  nor  the  note  spurious.  It  is  not  a  false  writ- 
ing, but  a  genuine  note.  And,  if  this  be  true,  the  ilefendant 
gave  to  Mrs.  Kinsey  the  security  which  he  reiu'csented  to  her 
that  he  could  procure,  and  upon  which  she  parted  with  her 
nioncn'.  The  state  had  deemed  it  material  to  pi'ove  that  the 
defendant  had  no  authority  from  Spare  and  Dillard,  or  either 
of  them,  to  sign  their  names,  and  if  it  was,  why  should  not  the 
defendant  be  allowed  to  n<'gative  and  conti'adict  that  evidence  J 

The  object  of  the  defendant,  by  the  evidence  oll'ered,  was  to 
show  that  he  had  authority  from  each  of  them  to  put  their 
signatures  to  the  note,  for  the  purpose  of  showing  that  the 
note  was  genuine,  and  that  their  signatures,  although  written 
by  him,  wo'e  authorized  by  them,  and  not  forgeries,  and  that 
the  security  that  he  had  represented  he  would  give  had  been 
furnished,  and  thus  obviate  the  intent  of  committing  the  crime 
with  which  he  was  charged.  What  effect  this  evidence  might 
have  had  upon  the  result  was  f(n'  the  jury  to  determine,  and 
with  whieh  we  have  nothing  to  do. 

AVe  think  the  evidence  was  admissible,  and  that  it  was  error 
to  exclude  it.  The  judgment  must  be  reversed  and  a  new  trial 
ordered. 


iiiri 


238 


AMERICAN  CRIMINAL  REPORTS. 


w 


Garmirg  v.  State. 

(104  Ind.,  444.) 

Forgery:  Indictment—  Evidence. 

1.  An  INSTRrMENT  READING  THUS: 

'•La  Orange,  June  19,  1881. 
"  Mr.  Allen:  Please  let  A.  Garinire  have  team  to  go  to  Mongo,  and 
.   charge  Hnine  to  me.  T.  Hudson," 

is  a  writing  obligatory  promising  to  pay  money,  within  the  meaning 
of  the  statute  defining  the  crime  of  forgery. 
8.  Indictment. —  Tlie  indictment  nmst  show  that  the  instnmicnt  is  one  iiav- 
ing  some  legal  effect,  but  it  is  not  necessary  that  it  should  be  shown  to 
be  a  perfect  instrumcTit. 
8.  Resemblance  of  fouued  to  (jenuine  instrument.— A  charge  of  for- 
gery may  be  based  uiH)n  an  instrument  which  bears  such  a  reseml)laiKe 
to  the  document  wliicli  it  is  intended  to  rejuesent  as  is  calculated  to 
deceive.  Felons  cannot  escape  ininishment  upon  the  ground  that  the 
person  whom  they  delil)erately  set  to  work  to  wrong  was  lacking  in 
care  and  vigilance. 


Appeal  from  La  Grange  Circuit  Court. 

0.  L.  Ballon  and  //.  G-.  Zhnmn'man^  for  appellant. 
F.  T.  Hord,  attorney-general,  F.  D.  Mci'vltt,  prosecuting 
attorney,  and  IF.  B.  Jlvrd,  for  the  state. 

Elliott,  J.     There  are  two  counts  in  the  indictment  upon 
which  the  appelhint  was  convicted.     One  charges  the  forgcrv 
of  the  instrument  of  writing  set  forth,  and  the  other  ch.i 
the  appellant  with  feloniously  uttering  the  forged  instrumt 
The  instrument  reads  thus : 

"  La  Grange,  Juno  19,  1881. 

'■'■  Mr.  Allen:  Please  let  A.  Garmire  have  team  to  go  to 
Mongo,  and  charge  same  to  me.  T.  Hudson." 

We  regard  this  instrument  as  within  the  provisions  of  our 
statute  defining  the  crime  of  forgery,  for  we  think  it  is  not 
merely  a  request  for  the  delivery  of  proi)erty,  but  that  it  is  a 
writing  obligatory  promising  to  pay  for  property.  The  hire 
of  the  team  was  property  of  value  to  Allen,  and  the  instru- 
ment purports  to  contain  a  promise  to  pay  the  hire.  Such  a 
promise  is  clejirly  implied  in  the  clause,  "and  charge  the  same 
to  me ;  "  for  it  would  be  unreasonable  to  assert  that  where  a 
person  asks  that  the  value  of  property  furnished  on  his  order 


(iAllMIUE  V.  STATE. 


239 


be  charged  against  him,  ho  intends  that  the  charge  shall 
be  a  mere  idle  and  senseless  form.  "We  do  not  understand 
the  case  of  State  v.  Cook,  .52  Ind.,  574,  to  decide  that  the 
forgery  of  such  an  instrument  as  the  one  set  out  in  the  indict- 
ment before  us  is  not  within  our  statute.  On  the  contrary,  we 
understand  that  case  to  decide  that  where  proper  extrinsic  facts 
are  alleged  an  indictment  founded  on  such  an  instrument  will  be 
good.  We  need  not  critically  examine  the  statements  found  in 
the  opinion  in  that  case  to  ascertain  whether  they  door  do  not 
correctly  state  the  law,  for  we  are  only  bound  to  regard  as  au- 
tlioritative  the  conclusion  reached  and  announced.  It  is  not 
improper,  however,  to  say  that  many  of  the  statements  con- 
tained in  tliut  opinion  are  of  <loubtful  soundness,  and  the  en- 
tiro  opinion  so  inliarmcmious  and  inconsistent  as  to  make  the 
case  one  of  questionable  autliority.  The  very  decided  weight 
of  authority  sustains  the  view  we  have  taken  of  the  character 
of  tlic  instruinont  set  forth  in  the  indictment.  U.  S.  v.  Book, 
2Cranch,  (L  (\.  21)+;  U.  S.  v.  /i/'o?«n,  3  Cranch,  C.  C,  268; 
Sfdte  V.  Jfo)'(/('»,  ;{.■)  La.  Ann.,  203;  State  v.  Ferfjuson,  id.,  104:2; 
Andemon  v.  Slate,  05  Ala.,  n.jS;  liurlce  v.  State,  00  Ga..  157; 
Peete  v.  State,  2  Lea  (Teim.).  513;  State  v.  Keeter,  80  N.  C, 
472;  People  v.  S/iaa\  5  Joims.,  230;  Com.  v.  Fisher,  17 
:Mass.,  40. 

The  rule  unquestionably  is  tliat  the  indictment  must  show 
t  lilt  the  instrument  is  one  having  some  legal  effect,  but  it  is 
not  necessary  that  it  should  be  sliown  to  be  a  perfect  instru- 
meiit.  2  liish.  Crim.  Law,  §  530;  Reed  v.  State,  28  Ind.,  396. 
An  instrument  such  as  the  one  l)efore  us  is  one  of  legal  efficacy, 
for  it  purports  to  create  a  pecuniary  obligation  against  the  per- 
s«)n  wliose  signature  is  forged.  Andcrnoii  c.  State,  05  Ala.,  553. 
Wliero  n  instrument  is  set  forth,  a  mistake  of  the  pleader  in 
(lesiffmitin":  its  character  does  not  vitiate  the  indictment. 
ITardiiuj  V.  State,  54  Ind.,  359;  Powerx  v.  State,  87  Ind.,  97; 
Myers  v.  State,  101  Ind.,  379.  The  indictment  alleges  that  the 
instri  ucnt  was  forged  and  uttered  with  the  "  felonious  intent 
to  feloniously  cheat  and  defraud  the  said  Aaron  W.  Allen." 
This  is  a  sufficient  statement  of  the  criminal  intent,  although 
there  is  a  useless  repetition  of  epithets.  In  this  class  of  cases 
"  all  that  need  be  done  is  to  characterize  by  appropriate  words 
the  intent  essential  to  the  existence  of  the  particular  offense 


ii',  ■ 


1-^ 


210 


AMERICAN  CRIxMINAL  REPORTS. 


charged."  State  v.  MUler,  98  Ind.,  70.  We  think  tliat  the  in- 
dictment does  sho\v  that  the  instrument  set  turth  purported  to 
be  signed  by  Timothy  ITudson.  It  is  not  nonessary  to  employ 
the  exact  words  of  the  statute,  for  it  is  well  settietl  t'lat  it  is 
suHicient  if  equivalent  terms  are  used.     SUitc  o.  MUh'.t\  suj^ra. 

The  objection  based  upon  the  fact  that  the  date  of  tlie  instru- 
ment appears  to  be  June  !!♦,  1  SSI.  is  without  merit.  The  in- 
dictment explicitly  charges  tliat  it  was  forged  and  uttered  on 
the  10th  day  of  June,  1885,  and  this  shows  that  the  statute  of 
limitations  has  not  run.  A  forger  cannot  escape  punishment 
by  prefixing  a  wrong  date  to  the  instrument  whicii  he  forges. 
It  would  be  a  reproach  to  the  law  if  it  ])erinitted  one  who 
forges  an  instrument  foi-  the  felonious  purpose  of  defrauding 
another  to  go  acquit  upon  the  ground  that  the  date  prefixed  to 
the  instrument  was  not  the  true  one.  It  is  sufficient,  in  such 
cases  as  this,  if  the  instrument  ''  bear  such  a  resemblance  to 
the  document  it  is  intended  to  represent  as  is  calculated  to  de- 
ceive." State  V.  Fenjumn,  f>-Kp/'a;  Iloscoe,  Crim,  Ev.  (7th  ed.), 
545. 

One  who  intends  to  con\mit  a  felony,  and  succeeds  in  ac- 
conq>lishing  his  evil  purpDse.  ciuinot  escaj)e  the  conse(]uon(os 
of  his  crime  by  denouncing  as  stupid  the  man  who  trusted  him. 
Nor  can  he  be  heard  to  aver  that  if  the  man  whom  he  intended 
to  defraud,  ami  whom  he  did  defraud,  had  been  more  vigilant. 
the  crime  could  not  have  been  pe;  |)etrated.  Felons  cannot 
escape  i)unishmeut  upon  the  ground  that  the  person  whom  they 
deliberately  set  to  work  to  wrong  was  lacking  in  care  and 
vigilance. 

Section  1801,  Revised  Statutes  ISSl,  refers  to  expert  wit 
nesses.  and  does  not  apply  to  a  case  whore  the  witnesses  testify 
as  to  facts  within  their  own  knowleilge.  That  section,  although 
not  very  happily  worded,  applies  to  cases  where  the  witnesses 
testify  as  to  matters  of  opinion,  and  not  to  cases  where  thev 
testify  as  to  matters  of  fact. 

We  cannot  disturb  the  verdict  upon  the  evidence. 

JuiUjiHcnt  affirmed. 


Note.—  Hon.  W.  R.  Sutton.  ju(lj,'P  of  the  Oneida  county  (N.  Y.)  fonrt  of 
sessions  lias  favored  the  editor  witli  tlie  opinion  of  that  court  in  tlie  case  of 
ThA  PeojJle  v.  Frederick  V.  Fadner,  who  was  indicted  tor  liaving  forged  the 


GARMIRE  V.  STATE. 


241 


imme  of  Wm.  M.  Wootlward  to  an  instrument  in  writing  of  which  the  fol- 
lowing is  a  coj)}-: 
••  $:,().  Utica.  N.  Y.,  Jan.  lo,  1880. 

"Six  motitlis  after  date,  I  promise  to  pay  to  the  order  of  Christine  Ech- 
liart  fifty  dollars  at  the  First  National  Bank  of  Utica,  value  received,  with 
interest  at  seven  per  cent. 

"  Due  July  l."J,  1880.  "  F.  C.  Fadnek. 

"  Wm.  M.  Woodward." 

To  the  indictment  the  defendant  interposetl  a  sjiecial  plea  settinj;  forth: 
"  1st.  That  the  indictment  is  void,  for  the  rea.son  that  the  note  alleged  to  be 
forged  is  usurious  and  void  on  its  face.  2d.  That  one  Alta  Fadner  was 
called,  sworn  and  examined  as  a  witness,  and  testifu'd  and  gave  evidence 
hoforesaid  grand  jury,  upon  which  said  indictment  was  found  or  predicated 
in  whole  or  in  jjart.  That  tlio  said  Alta  Fatlner  and  Frederick  C.  Fadner 
were  married,  and  she  hecanu;  his  (defcn<lant's)  wife,  on  the  20th  day  of  Au- 
^;ust.  1872,  and  after  said  nuvrriage  said  defendant  lived  and  coliabited  with 
said  Alta.  liis  wife." 

To  which  sj.ecial  pleas  the  People  interposed  a  demurrer.  Sustaining  the 
dcnnn-rer,  Sutton.  J.,  held  that  the  ohjintion  to  the  indictment,  that  it  is 
void  on  its  lace,  is  not  available  under  a  special  plea;  that  the  office  of  a 
>])ecial  plea  is  to  raise  an  issue  u|K)n  facts  not  apparent  up<m  the  record,  and 
•which  could  not  bo  available  under  tlie  plea  of  not  guilty  —  as,  for  instance, 
a  former  conviction  or  acipiittal ;  that  the  plea  wiis  defective  on  the  second 
unnmd  because  it  did  not  all(!ge  that  Alta  Fadner  was  defendant's  wife  at 
tin'  time  she  wa.s  sworn  before  the  grand  Jm'y. 

(We  think,  when  an  indictment  is  gootl  on  its  face,  an  objection  such  as 
that  luged  could  not  be  raiseil.  It  would  seem  the  better  pi'actice  to  object 
to  the  testimony  of  defendant's  wife,  when  otFcred  on  the  trial. —  Ep.) 

On  the  ground  tirst  urged,  that  thi'  indictment  was  void  upon  its  face  — 
the  note  being  usurious  —  after  <pioting  the  statute,  which  reads: 

"  ?]very  person  who.  witii  intent  tf)  injure  or  defraud,  shall  falsely  make, 
alter,  forge  or  counterfeit  any  instrument  or  writing  being,  or  purporting 
to  be.  the  act  of  another,  by  whi(  h  any  pecuniary  demand  or  obligation  shall 
be.  or  shall  purport  to  be,  created,  .  .  .  by  which  false  making,  forging, 
altering  or  counterfeiting  any  [M'rson  may  be  affected,  bound  or  in  any  way 
injured  in  his  jxtsoii  or  property,  upon  conviction  thereof  shall  bo  adjudge*! 
guilty  of  forgery  in  the  third  degree.'  the  judge  said :  "  The  question  in  this 
case  is,  may  Woodward,  or  any  other  per.son,  l>e  affected,  bound,  or  in  any 
way  injure<l  in  his  i)erson  or  projM'rty,  by  having  Woodward's  name  forge<l 
to  a  jjromissory  note  usuricms  on  its  face? 

"The  answer  tf)  this  (juestion  would  seem  to  Ije  found  in  the  answer  to 
another,  viz.:  Would  the  maker  of  this  note,  if  genuine,  be  compelled  to 
defend  in  order  to  protect  himself  fnmi  judgnu'iit  in  an  action  founded 
ui)on  it? 

"  If  the  note,  in  the  form  set  forth  in  the  indictment,  l»e  the  subject  of 
legal  proceedings  in  which  a  judgment  may  be  lawfidly  recovered  against  the. 
maker  on  default,  then  he  may  Ik;  injured  within  the  meaning  of  the  statute. 

"  It  is  an  injury  to  he  compelled  either  to  defend  a  suit  or  suffer  judgment. 

"The  defense  of  usury  is  available  only  upon  plea,  and  it  cannot  be  proved 
Vol.  V  — 16 


■r^:ii. 


w  '  "■■  i'm 


242 


AMERICAN  CRIMINAL  REPORTS. 


or  made  available  as  a  defense  under  a  general  denial.  Tyler  on  Usury.  <158, 
and  cases  cited ;  also  p.  463. 

"  We  are  unable  to  find  a  single  case  in  whicb  a  deniuiTer  was  interposed 
to  raise  the  defense  of  usury,  and  are  inclined  to  think  that  the  tJefense  would 
not  be  available  on  demurrer  in  a  suit  brought  upon  this  note. 

"It  would,  however,  be  an  injury  to  compel  the  party  wliose  name  is 
forged  to  demur  or  suffer  judgment. 

"An  action  might  be  brought  ui)on  this  note  in  any  other  state  of  the 
Union,  and  the  defense  then  would  be  necessarily  taken  by  answer,  f(ir  the 
usury  laws  of  this  state  would  be  questions  of  fact  to  be  proved  upon 
the  trial,  and,  if  the  msvker  did  not  defend,  a  valid  judgment  might  be  n  - 
covered  against  him. 

"The  defense  of  usury  cannot  for  the  first  time  be  raised  in  an  ai)p(Hiitc 
court.    Tyler  on  Usury,  463 ;  Eiriixj  v.  Hoirard,  7  Wall.,  499. 

"We  therefore  conclude  that  the  denmrrer  should  bi;  sustained.  Ordered 
that  defendant  plead  to  the  indictment  as  he  may  be  advised." 


State  v.  Wim.iams. 
(32  Minn..  r)37.) 

Fraudulent  sale  op  mortoaoed  chattels:  ludiottncnt  —  Attach ina  i)i- 
strument  as  e.vhihif  —  Oirnership  —  Growing  crop. 

1.  Fraudulent  sale  of  morto.vged  personal  ruopERTV — Indictment.— 

On  demurrer  to  indictment  under  Gen.  St.  1878,  ch.  39,  §  14,  for  a  fraud- 
ulent sale  of  mortgaged  i)ersonal  property,  luM,  th.at  an  allegjitioii 
that  the  defendant  "sold  and  disposed  of  the  property  to  one  A.  H.. 
and  divers  other  persons,  whose  names  were  to  the  grand  jury  un- 
known,"' charges  only  one  offense. 

2.  Attaciiincj  instrument.  — The  indictment  alleged  that  defendnnt  exe- 

cuted a  mortgage,  "of  which  a  true  copy  is  hereto  attached,  marktil 
'Ex.  A.,'  and  hereby  made  a  part  thereof."  A  copy  of  the  mortgiiic 
thus  marked  was  attached.  Heltl,  that  while  the  practice  of  attiiciiing 
an  instrument  os  an  exhibit  is  loose,  objectionable,  ami  not  to  1m'  en- 
couraged, yet  upon  demurrer  the  exhibit  must  bo  deemed  a  part  of 
the  indictment. 

3.  "  Havino  conveyed  by  MoimiAdE."— The  expression  "  having  conveyed 

by  mortgage,"  as  used  in  this  statute,  simply  nu'ans,  "having  executed 
a  mortgage." 

4.  Averment  op  ownersiiit. —  It  is  not  npces.sary  to  allege  in  the  iruUct- 

ment  that  the  defendant  was  the  owner  of  the  properly  mortgaged. 

5.  GRowiN(i  CROP. —  A  growing  crop  of  grain  is  i>ersonal  property  witliin 

the  meaning  o'  this  statute. 

C/jise  certified  from  the  district  court  of  Renville  county. 
Weber,  J.,  presiding. 


STATE  V.  WILLIAMS. 


243 


W.  J.  Ifa/in,  attorney -general,  and  G.  D.  Eniepy,  for  the 
state  of  Minnesota. 
John  W.  Ardander,  for  defendant. 


Wk 


MrrciiKM-,  J.  The  defendant  was  indicted  for  a  fraudulent 
sale  of  mortgaged  ])roperty,  coiitniry  to  the  provisions  of  Gen. 
St.  1878,  ch.  39,  §  14.  The  defendant  having  demurred  to  the 
indictment,  and  the  demurrer  having  been  overruled,  the  court 
below,  with  the  consent  of  the  defendant,  certified  the  case  to 
this  court  for  its  decision  upon  the  questions  of  law  involved. 

1.  We  are  of  opinion  that  the  indictment  is  not  liable  to  the 
charge  of  duplicity.  The  allegation  that  the  defendant  did 
"sell  and  dispose  of  to  one  P.  W.  Glenn,  and  divers  other  per- 
sons, the  names  and  description  of  whom,  or  of  any  or  either 
of  whom,  are  to  this  grand  jury  unknown,  the  personal  prop- 
erty described  in  said  mortgage  and  thereby  convoyed,  and 
the  whole  thereof,  to  wit,  four  hundred  bushels  of  No.  2  wheat," 
charges  a  sale  to  Glenn  and  divers  others  of  the  four  hundred 
bushels,  and  not  a  sale  of  ])art  to  Glenn,  and  a  se])arate  sale  or 
sales  to  others  of  the  remainder.  It  charges  a  sale  to  divers 
|>ersons,  and  not  divers  sales  to  divers  persons. 

2.  The  indictment  alleges  that  the  defendant  duly  executed 
and  delivered  to  D.  M.  Osborne  &  Co.  a  certain  "chattel  mort- 
gage, of  which  a  tnir  coju/  /.v  hereto  attached,  iii((rl'ed  '/iTc.  ^1.,' 
andhercbij  made  a  part  hereof,  to  secure  the  payment  of  $300," 
etc.  Attached  to  the  indictment  is  the  copy  of  the  mortgage 
referred  to,  and  marked  "  Ex.  A."  Tt  was  not  necessary  to  set 
out  the  chattel  mortgage  in  this  manner,  according  to  its  tenor, 
but  inasmuch  as  there  arc  no  words  of  essential  description  of 
the  mortgaged  property  in  the  body  of  the  indictment  (the 
description  of  the  property  sold  being  stated  under  a  videlicet), 
it  follows  that  the  indictment  is  insutHeient,  unless  this  Exhibit 
A  attached  to  it  is  to  bo  considered  a  part  of  it.  This  presents 
the  most  important  question  in  the  case.  This  practice  of 
attac^hing  a  copy  of  an  instrument  as  an  exhibit,  instead  of  in- 
corporating it  into  the  body  of  the  indictment,  is  certainly 
novel  in  criminal  ]ileading.  It  is  a  very  loose  and  dangerous 
practice,  and  certainly  not  to  be  encouraged.  It  is,  of  course, 
ijuite  common  in  civil  pleadings,  but  when  Ave  consider  the  lia- 
l»ility  of  an  exhibit  to  become  detached,  and  the  difficulty  of 


I 

i 
II 


2U 


AMERICAN  CRIMINAL  REPORTS. 


properly  and  conclusively  identifying  it,  such  a  practico  ouglit 
not  to  obtain  in  criminal  pleading.  If  an  indictment  la  this 
form  is  presented  to  the  court,  we  think  it  would  bo  emiiiently 
l)roper  for  him  on  his  own  motion  to  refuse  to  receive  it,  and 
to  return  it  to  the  grand  jury  with  instructions  to  have  it  drawn 
in  better  form ;  and  we  are  not  now  prepared  to  say  tliat,  if 
the  objection  were  raised  by  a  defendant,  upon  arraignment, 
by  motion  to  set  aside  the  indictment,  the  court  would  not  be 
justified  in  granting  tlie  motion  and  resubmitting  the  case  to 
the  grand  jury.  But,  as  against  a  demurrer,  we  can  see  no 
principle  of  law  upon  which  we  can  hold  that  an  exhibit  at- 
taclied  to  an  indictment,  and  referred  to  in  it  as  attached 
thereto,  and  marked  and  expi-essly  made  a  part  thereof,  should 
not  l)e  considered  a  part  of  tlie  indictment  the  same  as  if 
incorporated  in  the  body  of  the  pleading. 

Ji.  The  language  of  the  statute  under  which  the  indictment 
is  found  is,  "  that  if  any  person,  having  conveyed  any  article 
of  personal  ]>roperty  by  mortgage,"  etc.  The  point  is  made 
that  the  indictment  should  have  alleged  that  the  defendant 
owned,  or  at  least  had  a  mortgageable  int(;rest  in,  the  propert;/ ; 
for  if  he  had  not,  tiien  the  property  was  not  convet/ed.  This 
is  hypercritical  and  untenal)le.  It  is  not  uncommon  to  lind 
statutes  declaring  it  a  crime  for  a  person  to  sell  or  convey 
land,  without  having  title  thereto,  with  intent  to  detVaud. 
According  to  counsel's  mode  of  reasoning,  if  the  party  had  no 
title  he  had  never  conveyed  the  land,  and  hence  had  committed 
no  offense  under  the  statute.  The  statute  must  be  c(mstrned 
as  if  it  read,  "  If  any  person,  having  executed  a  mortgage  on 
any  article  of  personal  i)roperty,"  etc.  The  object  of  the  stat- 
ute was  to  prevent  mortgagors  of  personal  property,  in  posses- 
sion of  the  same,  from  disposing  of  it  during  the  life  of  the 
mortgage  without  the  consent  of  the  mortgagee. 

4.  The  description  of  the  property  contained  in  the  mort- 
gage is,  "  All  my  crop  of  wheat  now  mwn  and  t/roirlny  upon  " 
(describing  the  land).  The  contention  is  that  a  growing  crop 
is  not  "an  article  of  personal  property  "  within  the  meaning  of 
the  statute.  As  the  mortgage  was  given  in  June,  and  the 
crime  of  selling  the  property  is  alleged  to  have  betm  committed 
on  the  17th  of  November,  we  think  a  court  might  almost  take 
judicial  notice  that  the  wheat  had  been  severed  from  the  soil 


STATE  V.  HARBERSON. 


245 


before  the  latter  date.  But,  waiving  this,  while  in  certain 
cases,  as  between  grantor  and  grantee  of  the  land,  crops  will 
pass  by  deed  of  the  land  as  part  of  the  realty,  yet,  ordinarily, 
growing  crops  which  are  the  result  of  yearly  sowing  and  labor 
are  personal  property.  As  between  the  mortgagor  and  mort- 
gagee of  the  cro})s  they  are  such.  The  words  of  the  statute 
are  not  veiy  aptly  chosen,  but  the  word  "  article  "  is  here  used 
in  the  sense  of  one  of  many,  and  the  expression  any  "  article 
of  personal  ])roperty  "  means  any  kind  of  personal  property; 
that  is,  any  personal  property.  This  tlisposes  of  all  the  ques- 
tions raised  by  the  demurrer  to  this  indictment,  and  the  result 
is  that,  in  our  opinion,  it  was  properly  overruled. 


m 


Statk  v.  IIakhkkson. 

(43  Arkansas,  378.) 

Fraudulent  sale  t>F  moktoacied  property:  Indictment. 

Selling  MORTGACiEn  proi'EU  rv.  —  An  indictment  foi*  selling  mortgaj;e(l 
property  must  sliow  not  only  tliat  tlic  mortgage  was  reconlod  or  fik<l 
with  tlie  clerk  as  a  r(>cor(l,  l)Ut  also  that  it  was  a<'knovvledge(l ;  ami  it 
would  he  hetttT  to  state  the  name  of  the  purchaser,  or  that  his  nauu! 
was  unknown. 

Appeal  from  Montgomery  Circuit  Court.  lion.  II.  B.  Stuart, 
Circuit  Judge. 

C.  li.  Moore,  attorney-general,  for  appellant. 

I'^AKiN,  J.  On  tiie  21st  day  of  February,  ISS-t,  the  grand  jury 
indicted  Ilarberson  for  the  olfense  of  selling  property  subject  to 
a  niortgiige.  A  demurrer  was  made  to  the  indictment  on  the 
grounds  that  it  was  vague,  indefinite,  uncertain  and  insufficient, 
aad  because  the  facts  did  not  constitute  a  })ublic  oflfcnsc.  It 
was  sustained,  and  the  state  appeals. 

The  indictment  charges  that  "the  said  Uarberson,  on  the  1st 
(lay  of  October,  A.  D.  1883,  in  the  county  and  state  aforesaid, 
unlawfidly  and  feloniously  did  sell  one  horse,  without  the  con- 
sent of  Cunningham  &  Cubage,  a  Jirm  composed  of  J.  B.  Cun- 
ningham and  J.  1).  (\ibage,  in  whose  favor  a  lien  then  and 


i 


l! 


M\[ 


246 


AMERICAN  CRIMINAL  REPORTS. 


there  existed  on  the  said  horse,  by  virtue  of  a  mortgaf>o  oxe 
cuted  and  delivered  on  tlie  14th  day  of  IMarch,  1883,  by  said 
liarborson  to  J.  T.  Swindle ;  which  mortgaire  was,  on  the  r.th 
day  of  April,  1883,  filed  with  the  clerk  of  said  county  to  be 
there  kept  as  a  public  record,  indorsed  as  follows,  to  wit:  '  This 
instrument  is  to  be  tiled  but  not  recorded,  J.  T.  Swindle;' 
which  mortgage  was,  on  the  8th  day  of  Sei)tember,  18815,  as- 
signed and  transferred  by  said  Swindle  to  said  Cunningham  & 
Cubage,  and  the  said  horse  was  sold  without  the  consent  of 
said  J.  T.  Swindki." 

The  act  of  February  3,  1875,  makes  it  a  felony  in  any  one  to 
"  sell,  barter  or  exchange,  or  otherwise  dispose  of,"  any  i)ro{)- 
erty  "upon  which  a  lien  shall  exist,  by  virtue  of  a  mortgnoo, 
deed  of  trust,  or  by  contract  of  parties,  or  by  operation  of  law." 

It  has  been  held,  from  the  force  of  other  words  in  tlie  statute, 
that  this  penal  provision  ai>plies  only  to  such  liens  as  an^ 
recorded. 

A  filiuff  with  an  indorsement  that  it  is  onlv  to  be  filed  but  not 
recorded  is,  for  the  pur[)oses  of  this  act,  equivalent  to  rtK-ord- 
ing.  But  no  mortgage  can  be  either  recorded  or  tiled  unless  it 
be  duly  acknowledged. 

Construing  all  the  historical  allusions  and  descriptions  of  tlio 
indictment  as  direct  allegations,  they  amount  to  this:  That  on 
the  14th  day  of  March,  18S3,  defendant  executed  and  d(!liv 
ered  to  J.  T.  Swindle  a  mortgage,  which  was  on  the  5th  day 
of  April,  1883,  filed  with  the  clerk  and  indorsed  as  stated. 
That  on  the  8th  day  of  September,  1883,  said  Swindle  assigned 
and  transferred  said  mortgage  to  Cunningham  &  Cubage.  1'liat 
there  Wias  a  firm  so  called  composed  of  J.  I>.  Cunningham  and 
J.  D.  Cubage;  that  by  virtue  of  said  mortgage  there  existed  a 
lien  on  a  horee,  and  that  on  a  named  day  defendant  "did  sell " 
that  horse  without  the  consent  of  Cunningham  *fe  Cubage,  and 
also  without  the  consent  of  said  Swindle. 

Whether  or  not  tiie  allegation  that  there  was  an  "existing 
lien"  upon  the  horse  at  the  time  of  the  sale  would  have  been, 
of  itself,  sufficient,  is  not  now  necessary  to  be  determined.  It 
is  the  allegation,  in  the  language  of  the  statute,  of  a  condition 
of  things,  and  the  question  would  depend  upon  whether  this 
was  a  case  coming  undcn-  the  general  rule  that  it  is  sufficient  to 
allege  an  offense  in  the  language  of  the  statute,  or  whether  it 


THE  PEOPLE  V.  IIUGG. 


ii41 


fell  within  some  of  the  numerous  exceptions  classified  by  Mr. 
IJishop  in  his  work  on  statutory  crimes.  But  in  this  case  the 
allof^ution  goes  further  and  describes  the  lien  as  existing  "  by 
virtue  of"  a  certain  mortgage,  which,  as  described,  does  not 
show  such  a  lien  as  comes  witliin  the  purpose  and  purview  of 
the  law  as  heretofore  construed.  It  does  not  allege  that  the 
mortgage  was  acknowledged,  nor  is  there  any  equivalent  alle- 
gation to  show  that  it  was  such  an  instrument  as  might  be 
lawfully  recorded.  A  mortgage  unacknowledged  is  no  more 
than  so  much  blotting  of  a  record.  The  mortgage  is  described 
as  explaining  what  is  meant  by  the  woi'ds  existing  lien,  or  to 
show  how  it  arose,  and  does  not  show  it.  For  this  cause  we 
tiiiuk  it  defective  on  demurrer,  and  that  the  circuit  court  did 
not  err  in  its  ruling. 

The  court  moreover  is  not  thoroughly  satisfied  with  the  alle- 
iiation  as  to  the  sale.  It  does  not  state  the  vendee,  or  that  it 
was  a  person  unknown.  This  court  has  held  that  not  to  be 
ii(!cessary  in  the  case  of  a  sale  of  li(]uor,  and  it  might  not  be 
considered  a  fatal  defect  to  have  omitted  it  in  this  case  if  that 
were  all.  Nevertheless  this  is  a  felony  and  not  a  misdemeanor, 
and  it  would  be  better  to  be  more  definite,  and  to  advise  the 
defendant  more  certainly  of  the  s])ecific  transaction  upon 
wiiich  the  charge  is  founded.     The  court,  however,  rests  its 


decision  on  the  grounds  first  above  stated. 


II 


Affirmed. 


Tni:  Pi:oPLK  v.  Ruoo. 


(98  N.  ¥..537.) 

(iRAN'D  .1UUY  UNDER  CODE  OK  c:uiMiNAL  PROCEDURE:     Charging  offense. — 
Diyrccf  of  crime  —  General  verdict, 

I,  The  grand  .iurv  under  the  code. — The  provision  of  tlio  Code  of  Criin- 
iiial  Proeedurc  (sec.  22(5).  iiuthoiizing  a  grand  jury  to  be  drawn  "  for 
every  other  eourt  of  si.'wsioUH  "  than  tlie  courts  siK'cified  in  section  225, 
was  intended  to  provide  for  a  grand  jury  when  no  designation  is  >uadc 
by  the  ct)unty  judge  in  jiursuance  of  section  45,  empowering  him  to 
designate  the  terms  of  such  court  in  his  county  at  wliicli  a  grand  jury 
is  re<iuired  to  attend,  or  when  special  circumstances  exist  reciuiring  a 
grand  jury,  aside  from  tht)se  provided  for  in  said  section.  Where,  con- 
se<iuently,  the  terms  of  said  court,  andtliose  at  wliich  a  grand  jury  is 


248 


AMERICAN  CRIMINAL  REPORT.S. 


required  to  attend,  have  been  designated  by  the  county  judge,  an  oidci 
'  f  court,  or  of  the  board  of  supervisors,  is  not  absolutely  nocessiiiy  {i< 
legalize  the  summoning  and  drawing  of  a  grand  jury  at  a  court  xu 
designated. 

2.  CHAUGiNa  OFFENSE  IN  DIFFERENT  COUNTS.— Sections  273  and  375  of  the 

cotle,  abolishing  all  prior  forms  of  pleading  in  criminal  actions,  and  pro- 
viding that  an  indictment  shall  contain  "  a  plain  and  concise  statement 
of  the  act  constituting  the  crime,  without  unnecessary  repetition."  docs 
not  prohibit  the  charging  of  the  offense  in  diiTerent  forms  in  dilferent 
counts. 

3.  Degrees  of  crime  —  Geneuai.  verdict.— On  the  trial  of  an  indictment 

for  murder  in  the  first  degree,  a  general  verdict  of  giiilty  is  proper. 
The  provision  of  the  Peii.-il  ('ode  (sec.  10)  declaring  that  when  ";uiiinc 
is  distinguished  into  degrees,  the  jury,  if  they  convict  the  luisoner, 
must  find  the  degree  of  the  crime,"  must  be  construed  with,  and  is 
qualified  and  restricted  by,  sections 436,  45)7,  authorizing  a  general  ver- 
dict of  "  guilty  "  or  "  not  guilty,"  an<l  declaring  that  such  a  verdid 
"  imports  a  conviction  or  acijuittal  of  the  offense  diarged." 

4.  Same  — When  essential  to  find  degree.— It  is  essential  to  find  tln' 

degree  of  crime  onlj-  when  the  jury  find  the  defendant  guilty  of  suiiir 
degree  other  than  the  one  charged  in  the  indictment. 

liichai'd  liustid'd.  for  appellant. 

John  Flenihuj,  disti'ict  attoi'iiey,  for  respondent. 


MiLi.EK,  J.  Tlic  defondunt  was  indicted  for  murder  in  the 
first  degree  in  killing'  one  Ann  K.  Maybee,  in  the  town  of 
Oyster  IJay,  Queens  county,  on  the  17th  day  of  XovciuIkm'. 

1883,  and  was  tried  and  convicted  of  tlie  ofTense  in  tlie  court  ol 
oyer  and  terminer  lield  in  said  county  on  the  1-kh  day  of  April. 

1884.  The  juiy  rendered  a  general  verdict  of  "guilty"  with- 
out designating  the  degree  of  the  crime. 

Various  questions  were  raised  ui)on  the  trial  Jind  are  now 
])rcsented  on  this  appeal,  and,  so  far  as  they  affect  the  legiility 
of  the  proceedings  and  the  conviction  of  the  defendant,  will 
receive  due  consideration. 

The  fii-st  question  presented  upon  the  argument  relates  to 
the  organization  of  the  grand  jury  which  found  the  bill  of  in 
dictment  against  the  defendant,  and  it  is  insisted  that  the  court 
erred  in  refusing  to  set  aside  the  indictment  on  the  ground  that 
it  was  not  found  by  a  legally  organized  grand  jury.  This 
(juestion  was  raised  by  a  motion  to  quash  the  indictment,  which 
was  based  upon  the  affidavit  of  the  defendant's  attoriu'v 
^vherein  he  set  forth  that  he  had  made  diligent  search  in  the 


THE  PEOPLE  V.  RUGO. 


249 


clerk's  office  of  Qucons  county  for  .a  cf)py  of  tho  order  of  tlie 
court  or  board  of  supervisors,  suiumonin<^  the  grand  jury  for 
the  term  of  the  court  of  sessions  at  whicli  the  alleged  indict- 
ment against  the  dd'ciidant  was  found,  which  should  hiave 
b(!en  filed  as  required  i)y  statute,  and  that  there  was  no  record 
of  any  order  by  tlie  court  or  board  of  supervisors,  sunnnoning 
a  grand  jury  for  the  said  term,  and  that  the  summoning  and 
impaneling  of  tho  said  alleged  grand  jury  was  irregular  and 
without  warrant  of  law.  In  opposition  to  this  atUdavit  the 
)'ecord  from  the  county  clerk's  ofllce  was  produced,  showing 
tli(^  ap[)ointm<uit  by  th(!  county  judge  of  Queens  county  of  the 
times  and  |)lace  of  holding  terms  of  the  county  court  and 
court  of  sessions,  and  designating  those  terms  at  which  a  grand 
jury  should  be  summoned,  as  re(]nired  by  law,  among  which 
was  the  one  at  which  llie  indictment  against  the  defendant 
was  found;  also  proof  of  the  publicati(m  of  the  notice  for  the 
holding  of  coui'ts  in  the  county  of  (Queens  as  before  mentioned 
in  accordance  with  the  statute. 

The  chiim  of  the  defendant's  counsel  is  that  section  4r>  of 
the  Code  of  Criminal  Procedure,  under  which  tho  notice  and 
publication  referred  to  were  made,  has  no  relation  to  the 
formation  of  grand  juri(^^,  and  that  the  main  object  of  that 
scctiou  is  to  i)rovide  for  the  holding  of  courts  of  sessions  in 
counties  other  than  IS'ew  York  aiul  Kings,  and  that  the  pro- 
vision in  it  respecting  gi'and  aiul  petit  juries  is  only  an  incident. 
The  [)oint  urged  is  that  the  grand  jury  by  whom  the  defend- 
ant was  indicted  was  not  directed  to  be  summoned  by  the 
court  or  board  of  supervisors  in  pursuance  of  sections  225  and 
22<!  of  the  Code  of  Crimiiuil  Procedure,  and  that  they  were 
drawn  in  violati(jn  of  section  227  of  said  code,  and,  therefore, 
no  aulhority  existed  for  the  drawing  of  the  graiul  jury  in 
question.  The  question  presented  re(]uires  the  examination  of 
the  various  sections  of  the  code  referred  to,  and  any  other  that 
bears  upon  the  subject.  liy  section  -45  it  is  declared,  "  a  court 
of  sessions  must  be  held  at  such  times  as  the  county  judge  of 
the  county,  by  order,  designates,  and  at  the  place  where  the 
county  courts  are  iu)ld  for  the  trial  of  issues  of  fact  by  a  jury. 
Such  order  must  tlesignate  the  terms  at  which  a  grand  or  petit 
jury,  or  both,  or  neither,  is  recjuired  to  attend ;  and  neither  a 
grand  jury  nor  a  petit  jury  is  recpured  to  be  drawn,  or  sum- 


V    M 


23«) 


AMERICAN  CRIMINAL  REPORTS. 


inoncd  to  attend  a  term  thus  designated  to  bo  held  witliout  a 
jury.  The  order  must  be  pubhshed  in  a  newspaper  printed  in  tlic 
county,  for  four  successive  weeks  previous  to  tlie  time  of  lidid- 
ing  the  lirst  term  under  such  order."  This  section  is  a  puit  of 
cliapter  2,  title  5,  part  1,  of  the  Code  of  Ci-iminul  Procedure, 
which  relates  to  courts  of  sessions  in  counties  other  than  Xew 
York  and  Jvin«,fs.  Under  this  section,  as  we  have  seen,  an  order 
was  made  designatin<r  the  times  when  and  ])lace  iit  wliidi 
courts  of  sessions  in  said  county  should  be  held,  and  the  terms 
when  a  grand  jury  would  be  required  to  be  summoned;  and 
due  notice  was  given  of  the  same  as  the  law  recjuired.  Ey 
section  ti)  provision  is  made  for  the  drawing  and  summoning 
of  a  grand  jury  where  a  county  ju<lge  omits  to  desigiuite  the 
terms  in  accoi'dance  with  section  45,  and,  in  case  of  such  no'''- 
lect,  grand  juries  are  to  be  drawn  and  summoned  for  each  of 
the  terms  mentioned  in  the  order  provi(h>d  in  section  45. 

It  is  quite  manifest,  wo  think,  that  the  grand  jury  which 
found  the  bill  of  imlictment  against  the  defendant  was  hiwfully 
drawn  and  summoned  in  ])ursuance  of  seel  ion  45  above  cited. 
As  the  terms  were  named  in  the  order  of  the  county  judg(!.  at 
which  grand  juries  were  to  be  drawn  and  summoned,  the  pro- 
visions of  section  46  have  no  application. 

A  lawful  grand  jury  having  been  drawn  and  sumnu)ned,  and 
the  indictment  in  question  found  by  them  in  iiccordance  with 
the  provisions  cited,  such  indictment  must  be  held  to  bo  valid, 
unless  it  is  made  to  appear  that  the  proceeding  was  in  conflict 
with  the  other  provisions  of  the  Criminal  Code  already  referred 
to.  Such,  we  think,  was  not  the  case,  and  the  provisions  of 
the  code  relied  on  by  the  defendant  are  in  entire  harmony  with 
sections  45  and  40  {snj)ra),  and  constitute  a  ])art  of  a  system  by 
which  grand  juries  may  be  drawn  and  summoned  to  meet  exi- 
gencies under  all  circumstances,  as  will  be  seen  by  an  examina- 
tion of  these  provisions.  Section  225  declares  that  grand  juries 
must  be  di'awn  for  courts  of  oyer  and  terminer,  except  in  the 
city  and  county  of  New  York,  and  the  county  of  Kings,  and 
except  for  the  extraordinary  or  adjourned  terms;  for  the  court 
of  general  sessions  of  the  city  and  county  of  New  York,  and 
the  court  of  sessions  of  the  county  of  Kings,  and  the  city  courts 
whenever  an  indictment  can  be  there  found.  It  will  be  ob- 
served that  no  provision  is  made  in  this  section  for  the  drawing 


ipp 


THE  PEOPLE  V.  RUGG. 


251 


of  grand  juries  for  courts  of  sessions  in  any  county  except  Xew 
York  and  Kings,  and  it  lia;7  no  application  to  any  county  in 
the  state  except  to  those  named.  As  we  have  seen,  grand  juries 
foi"  tlie  courts  of  sessions  of  such  other  counties  are  exjjressly 
j)rovuled  for  by  sections  45  and  40  ah'eady  cited. 

Section  22i\  provides  that  a  grand  jury  may  bo  drawn  for 
every  other  court  of  sessions  (not  named  in  the  preceding  sec- 
tion) when  specially  ordered  by  tiie  court  or  by  the  board  of 
supervisors.  This  section  was  intended  to  provide  for  the 
drawing  of  a  grand  jury  when  no  designation  iiad  been  made 
by  the  county  judge  in  pursuance  of  the  ]n'ovisi«in  of  section 
45,  or  where  special  circumstances  existed  whicli  retjuired  that 
a  grand  jury  be  (h'awn  and  summoned  indep(-'iulent  of  those 
wliich  were  ))rovided  for  by  the  sections  of  the  code  already 
cited.  Tijcre  is  no  absolute  requirement  that  a  grand  jury 
must  be  drawn,  but  merely  a  declaration  that  it  may  be,  thus 
leaving  it  a  matter  of  discretion  to  be  exercised  as  circum- 
stances might  demand.  Section  227  is  as  follows:  "If  made 
by  the  court  or  a  judge  thereof,  the  order  for  a  grand  jury 
must  be  entered  upon  its  minutes,  and  a  copy  thereof  tiled  with 
the  county  cleric  at  lease  twenty  days  before  the  term  for  which 
the  jury  is  ordered.  If  made  by  the  board  of  supervisors,  a 
copy  thereof,  certified  by  the  clerk  of  the  board,  must  be  filed 
with  the  county  clerk  at  least  twenty  days  before  the  term,  and, 
when  so  tiled,  is  conclusive  evidence  of  the  authority  for  draw- 
ing the  jury."  The  ditference  between  the  cases  last  provided 
for  and  that  contained  in  section  45  is  very  ai)parent.  In  sec- 
tion 45  the  publication  of  the  order  must  be  for  four  weeks 
before  the  holding  of  the  first  term  under  the  order,  while  in 
section  227  it  is  to  be  filed  in  the  county  clerk's  oltice  at  least 
twenty  days  before  the  term.  These  various  provisions  are 
not  inconsistent  but  essential  to  complete  a  systen\  by  means 
of  which  grand  juries  may  be  drawn  and  summoned  as  occa- 
sion may  I'equire. 

The  designation  by  the  county  judge  of  the  terms  of  court 
at  which  courts  of  sessions  shall  be  held  is  an  order  of  that 
officer  made  in  pnrsuance  of  the  statute,  which  alone  author- 
izes the  holding  of  such  courts,  and  it  specially  designates 
those  courts  at  which  grand  and  petit  juries  shall  attend,  and 
a  direction  and  notice  to  the  county  clerk  to  draw  said  jurors, 


-■■'ii 


I; 


mS 


7 — r 


2.'2 


AMERICAN  CRIMINAL  REPORTS. 


jind  to  the  proper  officer  to  summon  them  to  attend.  Tliis  is 
manifest  from  the  provision  contained  in  tlie  same  section 
(sec.  45),  that  '*  neither  a  grand  or  a  petit  jury  is  nujuired  to  be 
drawn  or  summoned  to  attend  a  term  tlius  desi^niated  to  be 
lield  without  a  jury,"  Tliere  is  no  grountl  U>\'  claiming  tliat 
the  order  is  not  effective  because  section  4.")  does  not  rcHpiiic 
that  it  should  be  filed  in  the  office  of  the  county  clerk,  and  no 
reason  exists  why  the  publication  of  the  order  of  itself  should 
not  be  a  notice  to  the  county  clerk,  as  it  is  to  otiior  persons,  of 
the  holding  of  the  courts  therein  mentioned.  It  is  the  duty  of 
the  county  clerk  to  take  notice  of  the  holding  of  courts  re- 
quired by  law;  to  give  the  proper  notice  of  the  drawing  of 
the  panel  of  jurors,  and,  in  connection  with  the  proper  otiicers 
whom  the  law  designates,  to  draw  the  same.  Code  of  Civ. 
Pro.,  sees.  1042,  lu4.'].  1(»44.  When  this  duty  is  performed  the 
panel  is  perfect  and  complete,  and  a  grand  jury  tlius  drawn 
constitutes  a  body  duly  authorized  to  find  bills  of  indictnu^nl. 

As  there  is  a  distinct  enactment  by  section  45  (mpra)  under 
which  grand  juries  may  be  drawn  and  summoned  for  courts 
of  sessions  in  the  different  c(Minties  of  the  state  generally,  and 
as  the  grand  jury  which  indicted  the  defendant  was  organized 
in  accordance  with  these  provisions,  there  is  no  ground  foi' 
claiming  that  it  was  illegally  constituted,  and  had  no  author- 
ity to  find  the  indictment  in  (piestion. 

Upon  the  trial  the  defendant  interposed  a  demurrer  to  the 
indictment  against  him  upon  various  grounds,  which  the  coui-t 
overruled,  and  the  defendant  e.xcejjted  to  the  decision.  It  is 
urged  that  this  was  erroneous  for  the  reasons  which  will  ])res- 
ently  be  considered. 

It  is  said  that  the  indictment  was  drawn  in  defiance  of  sec- 
tions 273  and  275  of  the  Code  of  Criminal  Procedure. 

I>y  section  273  all  forms  of  ])leading  in  criminal  actions 
heretofore  existing  are  abolished,  and  the  forms  ])r(jvided  by 
the  code  substituted  in  their  place.  Section  275  provides  for 
the  form  of  the  indictment,  and  tleclares  what  it  sliall  contain, 
and,  among  other  things,  a  plain  and  concise  statement  of  the 
act  constituting  the  crime,  without  unnecessary  repetition. 
The  claim  that  the  provisions  of  this  section  have  been  vio- 
lated cannot  be  upheld,  nor  can  it  be  said  that  the  phraseology 
employed  in  the  indictment  is  so  uncertain  and  difficult  as  not 


Wi 


THE  PEOPLK  r.  RUCUl. 


;.j.i 


to  1)0  comprehoiuled  upon  a  porusiil  of  tlic  sumo,  oi'  tluit  it  does 
not  intelligibly  nn<l  fairly  pi'csent.  in  language  sulHciently 
plain  and  concise,  the  real  character  of  the  offense  intended  to 
be  charged  against  the  defendant.  We  are  unable  to  perceive 
any  su(!h  deviation  from  the  ride  prescril)ed  by  the  statute  as 
wouhl  justify  the  conclusion  that  the  indictuuMit  is  demurrable 
on  that  account.  The  indictment  contains  four  different 
counts,  charging  the  commission  of  the  offense  in  somewhat 
different  forms.  While  to  sc^me  (\\tent  it  follows  the  old  form 
prior  to  the  enactment  of  the  Code  of  (Criminal  Procedure,  it 
cannot  bo  oaid  that  it  contains  useless  and  unnecessary  words 
which  violate  its  provisions.  In  view  of  the  circumstances 
connected  with  the  crinuj  with  which  defendant  was  charged, 
it  contained  a  plain  and  concis(!  statement  of  the  crime  alleged 
within  the  spirit  and  meaning  of  the  Criminal  (Jode.  It  is  not 
pointed  out  to  us,  nor  ai-e  we  able  to  discover  any  language  in 
the  indictment  which  evinces  a  disregard  of  the  provisions  of 
the  c<j(le,  or  a  deviation  from  the  principle  intended  to  be  es- 
tablished thereby. 

Nor  is  thei-e  any  ground  for  the  claim  that  tlic  indictment 
charges  more  than  one  crinu?.  Although  it  contains  different 
counts,  it  merely  states  the  commission  of  the  same  offense  in 
different  forms,  so  as  to  meet  the  evidence  which  might  be 
presented  upon  the  trial.  As  theiH>  was  no  direct  proof,  by  an 
eye-witness,  of  the  commission  of  the  offense  charged,  and  as 
it  was  connected  with  the  commission  of  other  crimes,  it  was 
entirely  competent  for  the  pleader  to  allege  in  different  counts 
such  facts  as  might,  by  possibility,  be  presented  upon  the  trial, 
and  as  the  proof  as  to  these  could  not  be  anticipated  with  ex- 
actness, such  allegations  were  proper  and  within  the  provisions 
of  the  Criminal  Code.  There  is  nothing  in  these  provisions 
whicli  compels  the  pleader  to  confine  the  indictment  to  a  single 
statement  of  the  facts  where  the  ])roof  is  uncertain.  The  ob- 
ject of  the  pleading  is  to  inform  the  defendant  of  the  crime 
alleged  against  him,  and  when  this  is  done,  without  needless 
repetition,  it  cannot  be  urged  that  he  has  not  been  fully  ad- 
vised of  the  character  of  the  crime  for  which  he  is  indicted. 

Nor  can  it  be  said  that  each  of  the  counts  charges  the  crime 
to  have  been  committed  in  precisely  the  same  manner  and  by 
])recisely  the  same  means.    On  the  contrary,  the  indictment 


•fl! 


M 


i:€; 


M' 
M 


254 


AMERICAN  CRIMINAL  REPORTS. 


contains  allegations  in  each  of  the  counts  showing  a  somewhat 
different  state  of  facts  and  varying  the  circumstances  under 
which  the  crime  is  alleged  to  have  been  committed.  This  is  in 
strict  accordance  with  the  provisions  of  the  Code  of  Criminal 
Procedure,  and  furnishes  no  ground  for  a  demurrer,  and  there 
was  no  error  committed  by  the  judge  in  overruling  the  same. 
The  trial  judge  did  not  err  in  receiving  the  general  verdict  of 
guilty.  The  indictment  contained  four  counts,  each  of  wliich 
charf>-ed  the  commission  of  the  crime  of  murder  in  the  first 
degree,  and  the  judge,  in  charging  the  jury,  stated  to  them 
that  the  indictment  was  for  murder  in  the  first  degree,  and 
that  inuh'r  it  they  coidd  convict  the  defendant  of  any  of  the 
degrees  of  murder  or  manslaughter  whicii,  wider  our  statute, 
made  uj)  tlie  general  designation  of  the  crime  of  homicide. 
At  tlio  close  of  his  charge  the  defer.dant's  counsel  asked  the 
judge  to  charge  that,  if  tlie  jury  should  convict  the  defendant 
unde)'  the  indictment,  they  must,  in  their  verdict,  find  the  de- 
gree of  the  crime  of  wliich  he  is  guilty.  In  response  to  this 
request  the  judge  charged  that  tiicy  might  find  him  guilty,  or 
if  they  found  liim  guilty  of  anything  but  murder  in  the  first 
degree,  they  must  then  specify  what  the  crime  is.  Xo  excep- 
tion was  taken  to  tliis  portion  of  the  charge.  Tiie  jui-y,  liaviiig 
retired,  returned  into  court  and  reiulerod  a  verdict  of  "guilty.'' 
Defendant's  counsel  then  moved  for  a  new  trial,  but  no  excep- 
tion was  taken  to  the  verdict  as  rendered,  nor  does  it  aiipeai' 
that  any  motion  was  made  in  arrest  of  judgment  on  the 
ground  that  it  was  erroneous.  It  would  thus  seem  that  the 
defendant's  counsel  acquiesced  in  the  submission  of  the  cas(>  to 
the  jury  in  the  form  in  which  it  was  presented  in  refei-ence  to 
the  rendition  of  the  verdict  and  to  the  form  of  the  V(3rdict  m 
rendered  without  interposing  any  objection  whatever  to  the 
same.  Without,  however,  determining  the  question  whether 
the  defendant's  coimsel  waived  his  right  to  interpose  an  objec- 
tion, upon  appeal,  to  the  verdict,  we  think  no  error  was  com- 
mitted either  in  the  submission  to  the  jury  or  in  receiving  the 
general  verdict  of  guiitv. 

Section  10  of  the  Penal  Code  provides,  "  whenever  a  crime  is 
distinguished  into  degrees,  the  jury,  if  they  convict  the  prisonei*. 
must  find  the  degree  of  the  crime  of  which  he  is  guilty."  This 
provision  must  be  interpreted  in  connection  with  others  which 


m 


THE  PEOPLE  V.  RUGG. 


255 


luivc  a  bearing  upon  t]ie  subject,  as  will  be  seen  by  reference 
to  tlie  sanio.  l>y  section  4;'>6  of  the  Code  of  Criminal  Proced- 
ure, "  the  jury  may  either  render  a  general  verdict,  or  when 
tliey  are  in  doubt  as  to  the  legal  effect  of  the  facts  ])roved,  they 
may,  except  upon  an  indictment  for  libel,  find  a  special  ver- 
<lict."  By  section  -t:57,  '"a  general  verdict  upon  a  plea  of  not 
o'liiity  is  either  '  guilty'  or  'not  guilty; '  whicli  im])orts  a  con- 
viction or  acquittal  of  the  offense  cliarged  in  the  indictment. 
Upon  a  plea  of  a  former  conviction  or  acquittal  of  the  same 
offense,  it  is  either 'for  the  ])eople '  or  '  for  th(!  derendant.' "' 
Taking  tliese  provisions  together,  it  is  apparent  that  section  10 
of  the  Penal  Code  must  be  construed  witli  the  (]ualiHcations 
and  resirictions  contained  in  sections  430  and  437,  ftitpra,  of  the 
Code  of  Crimiiuil  Procedure;  and  where,  as  in  this  case,  the  in- 
dictment cliarges  tlie  degree  of  the  crime  and  tlie  verdict  in 
the  general  one  "  guilty,"  it  is  not  essential  that  sucli  degree 
sliould  bo  specified  in  the  verdict.  Any  otlier  interpretation 
would  i-ender  tlie  provisions  contained  in  tlie  last  two  sections 
cited  inoperative  and  of  no  avail.  The  ol)ject  and  intention  of 
section  10  of  the  Peiuil  Code  evidently  was  to  gua^'d  and  pro- 
tect the  rights  of  the  defendant,  so  that  the  court  in  inilicting 
the  punishment  might  be  advised  of  tlie  exact  nature  of  tlie 
crime  of  which  he  was  convicted.  That  object  is  fully  accom- 
plished where  the  indictment  specifies  the  degree  of  the  offense 
charged  and  the  verdict  is  a  general  one  of  "guilty.''  The 
finding  of  the  jury  of  the  general  verdict  of  "guilty"  was, 
under  the  circumstances,  ecjuivalent  to  and  in  fact  a  verdict  of 
guilty  of  nnu'der  in  the  first  degree  in  view  of  the  fact,  espe- 
cially, of  the  instruction  nf  the  court  that  if  they  found  the 
defendant  guilty  of  any  other  degree  they  should  so  state  in 
their  verdict.  It  follows  that  the  verdict  of  the  jury,  as  ren- 
dered, furnishes  no  ground  for  Jl  reversal  of  the  judgment. 

There  are  no  other  questions  presented  in  the  case  that  re- 
(juire  an  extended  discussion. 

Numerous  (juestions  were  raised  on  the  trial  upon  the  impan- 
eling of  the  jury  in  reference  to  the  evidence  given  on  the 
examination  of  some  of  the  jurors  as  to  their  qualification  to 
act  as  such.  After  a  careful  examination  of  the  various  ques- 
tions raised,  we  are  satisfied  that  within  well  settled  rules, 
sustained  and  u|)hehl  by  ihe  decisions  of  this  court,  no  error 


25H 


AMERICAN  CRIMINAL  REPORTS, 


was  (30inniitted  b}^  the  judge  in  any  of  his  rulings,  and  tliat  all 
of  tlie  jurors  who  were  sworn  were  legally  qualified  to  act  as 
such,  and  we  do  not  deem  it  necessary  to  discuss  at  length  tlie 
objections  urged  in  regard  to  this  branch  of  the  case. 

The  claim  that  the  trial  court  failed  in  its  duty  in  not  admon- 
ishing the  jury  as  required  by  section  415  of  the  Code  of  Crim- 
inal Procedure  has  no  merit.  We  are  not  referred  to  any 
l)ortion  of  the  record  from  which  it  appears  distinctly  that  this 
was  not  done.  No  question  appeal's  to  have  1)cen  made  on  the 
subject,  and  no  exception  is  presented  whicli  raises  any  such 
jx)int. 

We  have  examined  the  othei*  points  which  have  been  urged 
upon  our  attention  by  the  defendant's  counsel,  and  we  do  not 
lind  that  in  any  of  tlic  rulings  upon  the  questions  referred  to, 
any  error  was  committed  by  the  judge  upon  the  trial. 

The  charge  against  the  defendant  involved  the  murder  of 
two  persons,  and  was  connected  ^vith  a  burglarious  entrance 
into  the  house  where  they  lived,  and  a  violent  assault  upon  a 
liliiul  and  inlirm  old  man,  and  also  a  felonious  taking  of  prop- 
erty and  money  from  the  premises.  The  trial  was  conducted 
with  entire  fairness,  the  defendant  was  defended  by  able  coun- 
sel, and  the  verdict  of  the  jury  was  fully  sanctioned  by  the 
evidence.  A  careful  examination  of  the  whole  case  leads  to 
the  conclusion  that  no  error  has  been  cc^mmitted  to  tlto  preju- 
dice of  the  (lefendant. 

The  judgment  of  conviction  should  be  anirmed  ami  the 
record  remitted  to  the  supi'eme  court,  with  directions  to  pro- 
ceed according  to  law. 


(All  concur.) 


JiuhjiHL'nt  ajftrmed. 


1 


Tr.vviss  v.  The  CoMMo.\wi:.\r.TFi. 

(100  ra.,  597.) 

CfRWn  JURY:  Juror  —  Motion  to  (iixtsh  —  New  trial  —  Practice  —  < 'orpus 

deticti  —  Instructions. 

I.   COUIIT   HAS   POWER  TO   POSTPONK    SITTINU    OK    OUAND    JUROR.S    TO    ANY 
WEKK   OP  THR  TERM  FOR  WHICH  THEY  ARE  DRAWN. —  Wlieil  the  rogulllV 

term  of  the  court  begins  on  tlic  first  Monday  of  M.iy  .and  continues  Un' 
two  weeka,  the  court,  for  tlie  accommodation  of  counsel,  may  nitike 


TRAVISS  iJ.  THE  COMMONWEALTH. 


i57 


an  order  on  the  first  day  of  tlie  term  detaiiiirig  tlio  grand  and  petit 
jurors  for  service  during  the  following  week,  to  whicli  the  trial  of 
causes  is  postponed.  In  obedience  to  this  order,  the  jurors  aj)- 
peared  on  the  s  »oond  Monday  of  the  term,  to  which  time  tlie  said 
several  courts  had  been  regularly  adjourned,  and  during  this  sitting  of 
the  grand  jury  an  indictment  for  murder  was  found  against  A.  At 
the  ti'ial  his  counsel  moved  to  (juash  the  indictment  on  the  ground  that 
the  court  had  no  jiowcr  to  detain  the  grand  jury  under  the  circum- 
stances stated.  Held,  that  the  court  had  such  ix)wer,  under  the  act  of 
A(  rch  18,  1875,  sec.  2  (P.  L.,  28),  and  that  the  actual  bodily  presence  of 
ilie  jurors  at  the  time  tlie  order  was  matle  was  not  necessary ;  the 
service  of  process;  ujion  the  jiersons  drawn  gave  the  court  jurisdiction 
over  them.  The  faihue  of  the  clerk  to  record  the  order  did  not  affect 
its  validity,  and  the  evidence  of  it  was  properly  supplied  by  the  entry 
of  an  order  7iut)c  jmi  tune. 
'3,  Impression  of  prisonkr's  ouilt.— Amere  impression  of  a  prisoner's 
guilt  on  the  part  of  one  called  tw  a  juror  is  not  sufficient  to  disqualify 
liim.  It  nmst  ai>pcar  that  he  Vuis  formed  a  fixed  opinion;  and  ques- 
tions asked  in  aii  examination  on  voir  dire  must  tend  to  elicit  informa- 
tion on  the  latter  point. 

3.  When  KKr.ATioNsmi'  of  deff.xd.vnt  is  unknown  to  juror.— A  mo- 

tion for  a  new  trial  was  made  on  the  ground  that  one  of  the  jurors  was 
a  second  cousin  of  the  jierson  alleged  to  have  been  murdered,  and  that 
this  fact  wns  not  known  to  the  defendant  oi  his  counsel  until  after  the 
verdiit  was  rendered.  It  also  api)ean'(l  that  tliis  relationship  was  un- 
known to  the  juror  until  after  tlie  verdict  Wiis  rendered,  and  tliat  ho 
liad  never  seen  the  murdered  woman  nor  heard  of  her  except  in  con- 
nection willi  the  iiuinler.  Held,  that  there  was  no  error  in  refusing  a 
new  trial. 

4.  Corpus  deucti  —  Instuuctions.— See  statement  of  the  case. 

Before  Merciir,  C.  J.,  Gordon,  Puxsou,  Triinkoy,  Sterrett, 
Green  iind  Clark,  JJ. 

Error  to  tlie  com-t  of  oyer  and  terminer  of  Tioga  county. 
Of  .lannary  term.  1  SSI. 

Indictment  of  George  Traviss  for  the  murder  of  Martha 
Sylvia.  Plea,  not  guilty.  The  case  was  brought  to  the  May 
sessions  of  said  court,  1883. 

Horace  />'.  Packet'  (with  whom  was  Stephen  F.  Wilson),  for 
plaintiff  in  error. 
Elliott  cfc  Watvous  and  Henry  M.  Foote,  for  defendant  in  error. 

A  motion  was  made  to  (juash  the  indictment,  the  grounds  for 
which  ap|Ksir  in  the  opinion  of  AV^illiams,  P.  J.,  overruling  said 
motion,  which  was,  inter  alia,  as  follows: 

'•  The  regular  sjiring  term  of  the  several  courts  in  this  county 
Vol.  V  — 17 


mmm 


mmuMniW: 


■A 


:i 


258 


AMERICAN  CRIMINAL  REPORTS. 


commences  on  the  first  Monday  of  May  and  continues  two 
weeks.  The  first  week  is  devoted  to  criminal  and  the  second 
to  civil  business.  For  the  May  term  last,  writs  of  vemre  issued 
in  due  time,  and  the  jurors,  grand  and  petit,  were  drawn  and 
summoned.  But  a  few  days  before  the  time  it  was  learned 
that  the  writs  of  error  to  the  courts  of  this  judicial  district 
were  returnable  on  the  first  Monday  of  May,  instead  of  the 
second  Monday,  as  had  been  previousl}^  understood.  To  ac- 
commodate gentlemen  of  the  bar  who  were  engaged  in  the 
ai'gument  of  cases  before  the  supreme  court,  and  at  the  same 
time  to  secure  the  transaction  of  the  business  of  the  crnuinal 
courts  during  the  two  weeks  allotted  to  the  IVfay  term,  ordeis 
were  made  on  the  first  day  of  the  term  detaining  the  grand 
and  petit  jurors  for  service  during  the  following  week,  to  wliich 
time  the  trial  of  causes  was  postponed.  In  obedience  to  the 
order  so  made,  the  grand  and  petit  jurors  presented  themselves 
on  the  second  Afonday  of  May,  to  wiiich  time  the  courts  of 
oyer  and  terminer,  general  jail  delivery  and  quarter  sessions  of 
the  peace  liad  been  regularly  adjourned,  and  the  business  of  the 
term,  so  far  as  the  work  of  tlie  gran<l  jury  and  the  trial  of 
causes  is  concerned,  was  then  entered  upon. 

"  During  tlie  sitting  of  tlie  grand  jury,  among  other  indict- 
ments presented  was  one  against  tlie  defendant  in  thisciise  for 
muider.  Defendant's  counsel  now  move  to  quash  the  indict- 
ment against  him,  and  assign  reasons  which  assert  that  the 
court  had  no  power  to  detain  the  grand  jury  under  the  cir- 
cumstances stated,  and  th.'it  their  action  was  wholly  irregular 
and  without  the  authority  of  law.     ,     .     . 

"Our  holding  may  be  summari/ed  as  f(  Hows: 

"1.  The  'court'  has  iK)wer,  under  the  act  of  1875  (P.  L.,  28, 
sec.  2),  to  make  the  order  under  consideration,  and  the  actual 
bodily  presence  of  the  jurors  at  the  time  when  it  is  made  is 
wholly  immaterial. 

"2.  The  'judges'  of  the  criminal  courts  are  the  sole  triers  of 
the  necessity  for  making  such  order,  and  their  decision  upon 
the  question  is  final  and  conclusive. 

"  3.  The  service  of  the  process  of  the  court  upon  the  persons 
drawn  as  jurors,  and  not  tliiiir  actual  presence  in  the  court- 
room, gives  the  court  jurisdiction  over  tlnMii.  and  the  right  to 
make  any  neccjssary  order  affecting  their  attcmdance  is  subject 


TRAVISS  V.  THE  COMMONWEALTH. 


259 


m 


only  to  the  qualification  that  they  must  have  notice  of  such 
order  before  they  can  be  held  to  be  in  contempt  for  not  obey- 
ing it. 

"  4.  That  the  failure  of  the  clerk  to  record  the  order  when 
made  does  not  aflfect  its  validity.  The  order  is  the  act  of  the 
court.  The  entry  upon  the  minutes  is  only  evidence  of  it. 
This  evidence  can  be  supplied  by  the  entry  of  the  order  nunc 
pro  time  whenever  the  omission  is  brought  to  the  attention  of 
tlic  court. 

"  5.  The  power  so  to  correct  its  own  minutes  is  so  well  set- 
tli'd  that  we  should  feel  justified  in  refusing  permission  to  the 
detV'iidunt  to  have  his  objection  thereto  filed;  but  out  of  abun- 
dant caution,  and  that  we  may  save  any  possible  right  of  the 
defendant  in  the  premises,  leave  is  granted  to  file  an  objection 
in  writing  to  the  making  of  the  order  uj)on  the  clerk  to  enter 
inmcju'o  tuno  the  order  of  May  7,  1S84. 

"The  motion  to  quash  the  indictment  in  this  case  is  over- 
ruled."   (First,  second,  third  and  fourth  assignments  of  error.) 

Wlien  the  case  was  called  for  trial  defendant's  counsel  pro- 
p().s(Hl  to  ask  one  .lames  M.  Tioe,  who  was  being  examined  on 
Ills  rnir  (fii'c  as  to  his  qualification  to  sit  as  a  juror,  the  follow- 
ing question: 

"  You  may  state  wliether  you  have  formed  any  impression 
of  his  guilt  or  innocence  from  what  you  have  read  and  from 
what  you  have  heard  of  this  transaction?" 

Objected  to  on  the  ground  that  the  proper  question  was 
whether  Koe  had  formed  an  opinion,  not  whether  he  had  au 
impression. 

The  Court:  ''We  are  of  ojjinion  that  the  impartiality  of  the 
juror  should  be  d«»termined  by  the  legal  test,  which  is  the  for- 
mation or  non-formation  of  an  opinion  upon  the  guilt  ov  inno- 
cence of  the  defendant,  and  as  the  phraseology  of  the  ({uestion 
is  too  vague  to  afi'ord  any  standard,  if  answered,  by  which  to 
deteriiiine  his  impartiality,  we  exclude  the  question."  (Fifth 
assignment  of  error.) 

Numerous  other  persons  were  cliallenged,  practically,  on  the 
ground  that  they  had  inqu'essions  in  regard  to  defendant's 
guilt,  and  the  challenges  were  not  sustained  by  the  court. 
(Sevonth.  eighth,  nintli  and  tenth  assignments  of  en-or.) 

The  evidence  in  the  case  was  to  tlie  following  efi'ect :  Martha 


f 


'% 


I 


260 


AMERICAN  CRIMINAL  REPORTS. 


Sylvia  was  seen  in  the  village  of  Wellsboro  up  to  about  C 
o'clock  in  the  afternoon  of  April  3,  1883.  She  lived  about 
three  miles  and  a  half  from  the  village,  and  alone.  Slic  was 
seen  ^'•oing  homo,  after  having  entei'ed  upon  tlie  road  wliicli 
led  directly  toward  her  house.  The  next  morning  lun-  house  was 
found  locked  and  she  was  not  tliere.  Tlic  clock  was  runniii<i', 
but  I  he  bed  appeared  not  to  have  been  used  (lui'iny-the  nigiit. 
and  there  was  no  fire  in  the  stove.  Slui  was  never  scon  or 
hoard  of  afterwards  alive.  Upon  the  road  along  which  slio 
had  to  pass  stood  a  barn,  which  was  found  to  be  on  tiro  about 
the  time  sh(;  would  naturally  have  passed  it,  and  was  wholly 
consumed.  After  the  fire  had  somewhat  abated  there  was  dis- 
covered in  the  ashes  an  object  which  was  su|)posod  at  the  time 
to  1)0  the  remains  of  some  animal;  but  on  the  t'oUowini;  morn- 
ing a  physician  pronounced  it  to  bo  tlu^  trunk  of  aiv  adult 
Avomaii.  Upon  further  search  in  the  ashes  a  door  Icov  was 
found,  also  a  bunch  of  keys,  a  little  h>cket,  a  few  hair  j)ins  and 
buttons,  and  the  remains  of  an  ear  i-ing.  It  was  afterwards 
discovered  that  the  door  key  v.-ould  tit  the  door  of  Martha 
Sylvia's  house;  that  one;  of  the  keys  on  tho  bunch  would  tit  lior 
satchel  and  another  her  trunk.  A  small  piclui-e  was  also  found 
in  the  house  which  appai'ontly  Ijelongod  in  the  locket. 

The  defendant,  Traviss,  was  soon  with  Martha  Sylvia  on 
April  3,  1883,  by  numerous  witnesses  and  at  various  times  dur- 
ing the  day.  \h\  walked  along  the  roatl  with  her  part  way 
from  her  house  to  AVolIsboro,  when  some  one  took  her  the  I'cst 
of  the  way  in  his  wagon.  They  were  soon  together  in  Wells- 
boro by  several  p(>rsons.  Traviss  called  for  hor  at  a  s'oro 
about  G  o'clock  in  the  evening.  There  was  evidence  that  tluw 
were  afterw^ards  se(;n  togotlu^r  in  various  streets,  and  linailyon 
the  road  leading  toward  the  barn.  One  witness,  who  livoil 
well  U|)  the  road  toward  the  barn,  testified  that,  some  time  aflor 
dark,  a  man  came  and  I'appod  at  his  door;  that,  on  opening  tin- 
door,  he  was  attracted  by  the  strang(>  apjioarance  and  manner 
of  the  maji  standing  thoi'c.  ( )ne  of  them  said,  "good  evening," 
to  which  the  otluM"  replicMl.  aiul  thon  tin;  stranger  askod  lor 
some  matches,  which  tho  witness  gavo  him,  whonMipon  ho  w(Mit 
away  in  the  darkness.  Tho  witness  idontiiled  'I'raviss  as  the 
:uan.  '  iothing  was  afterwards  sihmi  of  Ti'aviss  until  ho  ari-ivod 
at  the  house  of  his  brother-in-law,  Mr.  Keese    -  with  whom  ho 


m 


TRAVISS  V.  THE  COMMONWEALTH 


261 


lived, —  a  mile  or  more  beyond  the  barn,  some  time  between 
8  and  10  o'cloclc  in  the  evening  It  further  appeared  that  Tiu- 
viss  had  agreed  to  buy  some  cattle  from  JSfartha  Sylvia  for 
$53,  and  when  ho  left  home  in  the  morning  ho  said  he  was 
ffoing  to  Stokesdale  to  get  some  monev  which  was  duo  iiim 
from  one  Constant  Bailey,  to  pay  Martlia  for  the  cattle.  Young 
Freddie  Reese  testified  that,  after  Traviss  reached  homo  in  the 
evening,  at  su[)per,  he  said  he  had  been  to  Stokesdale  and  oh- 
tainod  the  money  from  J>ailey  and  paid  it  to  ^lartha  Sylvia. 
Other  witnesses  testified  tiiat  he  afterwards  told  them  different 
stories  about  the  money,  and  that  he  did  not  see  Bailey,  but 
liad  part  of  the  money  in  his  pocket  and  got  the  rest  out  of  a 
field  where  he  had  buried  it.  There  was  evidence,  however, 
as  above  set  out,  that  lie  ilid  not  go  to  Stokesdale,  but  went 
with  Martha  Sylvia  from  her  house  to  AV^ellsboro.  When 
called  upun  to  ex[)lain  wlien  he  last  saw  Martha,  he  said  ho 
last  saw  her  on  her  way  to  the  depot;  that  lie  had  paid  her  the 
money,  and  she  was  going  to  Indiana  to  see  lier  husband,  from 
whom  she  liad  scsparated.  The  evidence,  however,  showed  that 
she  did  not  go  to  the  train,  but,  on  tlie  contrary,  she  told  cer- 
tain witnesses  that  she  was  going  to  marry  Ti'aviss  and  go  west 
with  him.  Although,  on  his  way  home  from  AVellsboro,  he  iiad 
to  pass  Martlia's  farm,  where  the  cattle  were,  he  did  not  drive 
them  with  him ;  but,  upon  a  suggestion  from  Reese  that  Martha, 
having  sold  the  cattle,  would  probably  not  feed  them  that  night, 
Traviss,  Reese  and  a  boy  went  back  after  them.  They  went  to 
Martha's  house,  and  Traviss  rap[)ed  on  the  door,  but,  receiving 
no  answer,  turned  to  Reese  and  said  he  thought  Martha  had  not 
come  home.  They  then  went  to  the  field,  took  the  cattle,  and 
drove  thorn  home. 
Tlic  general  charge  of  the  court  was,  l/ifcr  oIhi,  as  fnllows: 
'•Tliere  is  nothing  more  seen  of  the  defen«lant,  so  far  as  the 
evidence  in  this  case  shows,  until  he  arrives  at  the  end  of  his 
journey,  a  mile  or  more  beyond  the  barn,  [lie  reaches  the 
house  of  Mr.  Reese,  depending  upon  the  conclusion  the  jiny 
may  arrive  at  from  all  the  testimony  of  the  witnesses,  without 
attempting  to  call  your  attention  to  it  particularly,  somewhere 
fix)m  a  little  befon>  8  o'clock  to  half-past  s>.'"  "  Y^ou  will  re- 
member the  evidence  of  Mr.  Hoyoe  and  Mrs.  Jioyce,  fixing  the 
tinve  when  Reese  left  their  house.     ...     If  he  pursued  the 


^2 


AMERICAN  CRIMINAL  REPORTS. 


road  upon  which  he  was  last  seen,  he  passed  by  tliis  barn.  He 
pa.ssod  by  it  at  a  time  which  mnd  be  not  far  from  boing  coin- 
cident with  tlie  time  when  the  fire  must  have  originated  — 
when  the  crime  must  have  been  committed.  ...  lie 
passed  this  barn.  He  passed  it  not  far  from  the  time  the  fire 
must  have  been  set  and  n'lme  committed,  and  he  reached  the 
otlier  end  of  his  journey,  as  we  have  said.]  (Sixteenth  assign- 
ment of  error.)  .  .  .  [On  the  night  of  the  3d  of  April, 
after  he  had  reached  home,  according  to  the  testimony  of  this 
same  young  man,  Fredei'ick  Reese,  while  he  was  at  siipper,  or 
before  he  had  started  after  the  cattle,  he  said  to  his  i'«>]atives 
that  he  had  been  at  Stokesdale ;  that  he  had  been  at  the  liouse 
of  Mr.  Bailey;  that  he  had  obtained  from  INfr.  Hailoy  !?r»,">,  and 
that  he  had  paid  to  Martha  Sylvia.  That  is  the  testimony  of 
Fi'ederick  Reese.]  (Seventeenth  assignment  of  error.)  .  .  . 
[The  evidence  indicates  that  the  defendant  had  paid  tliis 
woman;  he  certainly  alleged  he  had  paid  her  ^53,  the  price  of 
these  cattle,  that  night.]  (Eighteenth  assignment  of  error.) 
.  .  .  [You  can  say,  and  you  must  say,  whether  there  is  here 
any  evidence  of  motive  —  whether  there  was  money  to  be 
taken  from  her  person,  whether  there  were  cattle  to  be  secured, 
whether  he  had  any  purpose  of  lust  to  subserve.  .  .  .  "Wo 
suggest  these  possible  motives  to  you  for  your  consideration. 
They  are  pertinent  suggestions  which  the  jury  must  considt-r. 
If  the  defendant  committed  this  crime,  he  had  a  motive.] 
(Nineteenth  assignment  of  error.)  .  .  .  [Does  that  evidenc(> 
(of  defendant's  previous  good  character)  persuade  you  tiiai 
certain  other  testimony,  to  which  you  might  otherwise  give 
credence,  ought  not  to  be  relied  upon  by  you,  or  does  it  raise 
a  doubt  whether  you  ought  to  rely  upon  it?  The  depositi(»ns 
of  two  witnesses  have  been  read,  speaking  of  the  ])ast  good 
character  of  the  defendant  as  a  peaceable  man,  and  tlu*  testi- 
mony of  his  father  was  given  before  you.  You  are  to  say  ]i<»w 
far  the  testimony  of  these  three  witnesses,  as  to  the  p)'<>vious 
good  character  of  the  defendant,  affects  your  belief  in  the 
other  circumstances  in  this  cause  that  lead  to  the  conclusifni  of 
his  guilt.]  (Twentieth  assignment  of  error.)  .  .  .  [You 
have  the  power  to  fix  the  degree.  You  have  the  right  to  find, 
if  you  find  the  defendant  guilty,  that  it  is  murder  in  the  second 
degree.     Yet  we  should  not  acquit  ourselves  to  our  conscicntcs 


TRAVISS  V.  THE  CONMONWEALTH. 


263 


if  we  said  less  to  you  than  to  say  that  we  see  nothing  in  the 
testimony  in  this  case  tliat  would  justify  a  verdict  of  guilty  of 
murder  in  the  second  degree.  We  feel  that  we  ought  to  say 
that  to  you,  and  say  it  in  such  a  way  as  to  leave  no  ground  of 
mistake  about  it,  that  in  our  judgment  of  the  evidence,  if  it 
shows  murder  at  all,  it  sliows  a  murder  committed  with  delib- 
eration and  with  purpose.  This  opinion  is  not  binding  upon 
you;  but  we  have  the  light  to  give  it  to  you,  and  we  do  give 
it  to  you.]  (Twenty-first  assignment  of  error.)  .  .  .  Now 
you  have  this  case.  Your  question  is  not  whether  the  defend- 
ant ought  to  be  executed  or  not.  Tliat  is  not  your  question  at 
all.  You  have  nothing  to  do  with  tliat.  Your  question  is:  Is 
the  defendant  guilty  of  taking  the  life  of  Martha  Sylvia?  The 
penalty  the  law  fixes;  you  do  not.  You  are  neither  the  makers 
of  the  law,  nor  are  you  in  any  proper  sense  the  executors  of 
it.  You  simi)ly  aid  in  administering  it.  [And  the  subordinate 
part  assigned  to  you  in  the  administration  of  the  law  in  this 
case  is  to  determine  one  ([uestion:  Did  the  defendant  in  this 
case  take  the  life  of  Martha  Sylvia  if  You  have  nothing  to  do 
with  anything  else  in  connection  with  it.]"  (Twenty  second 
assignment  of  error.) 

Verdict,  guilty  of  murder  in  the  lirst  degree. 

The  defendant's  counsel  moved  in  arrest  of  judgment  on  the 
following  grounds: 

"The  indictment  does  not  set  forth  that  the  jurors  were  im- 
paneled, nor  that  it  was  found  a  '  true  bill '  by  the  action  of 
twelve  jurors."  '•  The  indictment  does  not  set  forth  that  the 
grand  iiujuest  inquired  in  the  county  of  Tioga,  or  that  they 
were  ever  in  Tioga  county,  or  were  of  the  county  of  Tioga." 
"The  jury,  purporting  to  be  a  grand  jury,  Avho  returned  said 
indictment  against  the  defendant— -a  true  bill  — was  not  a 
legal  grand  jury." 

Defendant's  counsel  also  moved  for  a  new  trial  on  the  ground 
that  "  E.  II.  Copp,  one  of  the  jurors  who  rendered  the  verdict 
in  this  case,  is  a  second  cijusiii  to  ^lartha  Sylvia,  who  is  alleged 
in  the  indictment  to  have  been  murdered,  and  that  this  fact 
was  not  known  by  the  defendant  or  his  counsel  until  after  the 
rendition  of  the  venlict  in  this  case,  viz.,  on  the  20th  of  July, 
1S83." 

The  opinion  of  the  court  on  both  of  these  motions  was,  inter 


( 


imss.. 


I 


264 


AMERICAN  CRIMINAL  REPORTS. 


alia,  as  follows :  "  After  a  defendant  has  been  arrested,  and 
before  bail  is  given,  is  the  proper  time  to  nuike  objections  to 
the  writ  or  the  manner  of  its  execution.  After  an  in<lictincnt 
has  been  found,  and  before  taking  defense  thereto,  all  proj)er 
dilatory  motions  and  pleas  are  heard  and  determined.  If  the 
indictment  remains  undisposed  of,  the  defendant  may  then  he 
called  upon  to  plead  and  enter  u))on  his  defense.  After  trial 
and  conviction  he  is  called  upon  for  reasons  why  sentence 
should  not  be  pronounced  in  accordance  with  the  verdict. 

"In  conformity  with  this  well  considered  and  well  settled 
order  of  procedure,  objections  to  the  form  of  an  indictment, 
or  to  the  manner  in  which  it  reached  the  records  of  the  court, 
should  be  taken  by  demurrer  or  upon  motion  to  quash.  If  not 
so  taken,  it  is  too  late  after  trial  and  verd'ct  to  considei*  them. 
In  this  case  they  were  raised,  considered  and  detci-mined  at  the 
proper  time,  and  ought  now  to  be  considered  not  only  as  be- 
longing to  an  earlier  stage  of  the  case,  but  as  actually  settled. 
.  .  .  The  motion  in  arrest  of  judgment  is  therefore  refused. 
(Eleventh,  twelfth  and  tliirteenth  assignments  of  error.)  .  .  . 
AVe  have  examined  the  facts  in  this  case,  and  we  find  that  the 
juror  was  wholly  ignorant  of  his  relationship  to  Martha  Syl- 
via. His  judgment  could  not  have  been  affected,  even  insen- 
sibly, by  a  circumstance  of  which  he  had  not  the  slightest 
knowledge.  If  this  be  so,  then  the  newly  discovered  relation- 
ship is  no  reason  for  setting  aside  the  verdict.  .  .  .  The 
rule  for  a  new  trial  is,  therefore,  now  discharged."  (Four- 
teenth assignment  of  error.) 

On  July  6,  1883,  the  court  sentenced  Traviss  to  be  h.anged. 
Whereupon  he  took  this  writ,  assigning  for  eri'or  the  refusal  of 
the  court  to  quash  the  indictment,  or  to  sustain  his  challenges 
of  the  jurors  as  above  mentioned;  the  parts  of  the  general 
charge  set  out  in  brackets ;  the  refusal  of  the  court  to  arrest 
judgment  or  grant  a  new  trial,  and  lastly  the  failure  of  the 
court  to  charge  the  jury  that  the  evidence  was  not  sufficient  to 
sustain  a  verdict  against  the  defendant. 


Mr.  Justice  Stkukkit  delivered  the  opinion  of  the  court: 
It  was  of  course  incumbent  on  the  commonwealth  to  estab- 
lish the  eorpiix  diilctl;  to  prove  to  the  satisfaction  of  the  jury 
that  the  bones  and  other  hunum  remains  found  in  the  ruins  of 


re? 


TRAVISS  V.  THE  COMMONWEALTH. 


265 


the  burned  buikling  were  those  of  Martha  Sylvia ;  that  her  death 
was  not  the  result  of  accident  or  any  natural  cause,  but  that  she 
was  murdered  by  some  one  at  or  about  the  time  the  barn  was 
burned;  and  that,  in  the  commission  of  the  crime, the  prisoner 
was  the  guilty  ai^ent.  On  behalf  of  the  commonwealth,  com- 
petent evidence  tendinf^  to  prove  each  of  thes(>  essential  facts 
was  adduced  and  with  proper  instructions  submitted  to  tlie 
jury.  Upon  them  rested  the  responsibility  of  carefully  con- 
sidering all  the  testimony  and  ascertaining  therefrom  what  the 
facts  were,  liefore  reaching  the  concbision  announced  by  their 
vei'dict,  they  must  have  been  satisfied  beyond  a  reasonable 
doubt  that  Mrs.  Sylvia  came  to  her  death  neither  by  her  own 
hand  nor  by  any  natural  or  accidental  cause,  but  that  her  death 
was  the  result  of  unhiwful  violence  .of  some  kind,  wilfully  and 
maliciously  inflicted  on  her  person  by  the  prisoner.  Some  of 
the  testimony  tending  to  establisii  the  corj)i(s  delicti  also  tended 
to  connect  the  ])risoner  with  the  crime  charged  in  the  indict- 
ment. The  testimony  is  (pjite  voluminous,  and  we  deem  it  un- 
necessary to  refer  specifically  to  the  several  items  thereof 
bearing  more  or  less  directly  on  the  questions  involved  in  the 
issue.  It  is  sufficient  to  say  that  it  was  all  proper  for  the  con- 
sideration of  the  jury,  and,  as  we  think,  sufficient  to  justify 
them  in  reaching  the  conclusion  they  did.  There  was  no  error, 
therefore,  in  charging  the  jury  as  complained  of  in  the  last 
specilication. 

The  subject  of  complaint  in  the  first  four  specifications  is 
that  the  grand  jury  by  whom  the  indictment  was  passed  upon 
and  returned  was  not  legally  constituted.  The  record  shows 
the  regular  term  of  the  courts  of  quarter  sessions,  oyer  and 
terminer  and  general  jail  delivery  for  the  county  of  Tioga 
began  May  7,  1888,  and  continued  for  two  weeks.  The  indict- 
ment was  found  and  returned  into  the  quarter  session's  on  the 
eighth  day  of  the  term,  and  was  duly  certified  by  that  court 
into  the  oyer  and  terminer  for  trial.  The  grand  jury  was 
regularly  drawn  and  summoned  for  the  May  sessions  of  said 
courts,  and  ordinarily  they  would  have  transacted  their  busi- 
ness during  the  first  week  of  the  term,  but  the  court,  for  the 
reason  stated  in  its  special  order,  determined  that  the  business 
of  the  grand  jury  should  be  transacted  during  the  last  instead 


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266 


AMERICAN  CRIMINAL  REPORTS. 


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of  the  first  week  of  the  term,  and  accordingly,  in  the  exor- 
cise of  its  discretion,  postponed  the  attendance  of  the  jury  until 
Monday  of  the  second  week,  at  which  time  they  were  duly 
organized  and  proceeded  with  the  business.  Being  regularly 
drawn  and  summoned  for  the  term,  the  grand  jury  were  thus 
l)roperly  in  attendance  during  the  second  week  thereof,  and  the 
indictment  acted  on  and  returned  during  that  time  is  neither 
irregular  nor  illegal.  For  the  summarized  reasons  given  by  the 
learned  president  of  the  court  in  the  conclusion  of  his  opinion 
refusing  the  motion  to  quash,  we  think  there  was  no  error  com- 
mitted by  the  court  in  that  regard,  and  hence  the  first  to 
fourth  assignments,  inclusive,  are  not  sustained. 

There  was  no  error  in  the  ruling  complained  of  in  the  lifth 
specification.  As  was  sait^  in  Allison  v.  Com.,  3  Out.,  17,  it  is 
only  when  it  appears  the  juror  has  formed  a  fixed  opinion  of 
the  prisoner's  guilt  that  he  is  disqualified.  Mere  impressions 
do  not  disqualify.  The  object  of  an  examination  on  voir  dire 
is  to  test  the  qualification  of  the  juror  by  ascertaining  from 
his  own  lips  whether  he  has  formed  an  opinion  as  to  the  guilt 
or  innocence  of  the  accused,  and  if  so,  whether  the  opinion  he 
has  formed  is  of  such  a  character  as  to  disqualify  him  as  a 
juror  in  the  case.  The  (question  that  was  propounded  to  the 
juror  and  excluded  by  the  court  was  clearly  improper  in  this, 
that  it  was  not  calculated  to  elicit  such  information  as  would 
be  a  proper  test  of  his  qualification.  The  question  suggested 
by  the  court  was  the  usual  and  proper  one.  In  answer  to  the 
question  whether  he  had  formed  any  opinion  of  the  prisoner's 
guilt  or  innocence,  the  reply  of  tlie  juror  was,  "No,  sir;  1  huvo 
probably  expressed  myself,  as  probably  most  every  man  has, 
as  saying  tluit  the  circumstances  were  strong;  but  I  have 
formed  no  o))inion  that  it  was  so."  This  fairly  expresses  the 
substance  of  what  was  elicited  by  examination  of  the  juror  on 
his  voir  dire;  and,  tested  by  tiie  j)rinciples  recognized  in  Sfaup 
V.  Com.,  24r  P.  F.  S.,  458;  O'Mani  ct  al.  v.  Com.,  25  id.,  424; 
Ortirein  v.  Com.,  20  id.,  415;  Carlcy  v.  Com.,  3  Norris,  151, 
and  AUinoii.  o.  Com.,  supra,  the  examination  failed  to  disclose 
any  legal  disqualification. 

The  sixth  specification  was  not  pressed  on  argument,  and 
does  not  call  for  special  notice.    It  is  not  sustained. 


;r 


TRAVISS   V.  THE  COMMONWEALTH. 


267 


Tested  by  the  juithorities  above  cited,  there  was  no  error  in 
the  rulings  couipluiiied  of  in  the  seventh  to  tenth  specifica- 
tions, inclusive. 

The  alleged  defects  complained  of  in  the  eleventh  and 
twelfth  specifications  are  at  most  merely  formal.  They  do 
not  affect  the  merits  of  the  case ;  and  it  is  a  sufficient  answer 
to  say,  the  eleventh  section  of  the  act  of  1860  requires  that 
objections  to  an  indictment  for  formal  defects,  apparent  on  the 
face  thereof,  shall  be  taken  by  demurrer,  or  on  motion  to 
quash,  before  the  jury  is  sworn,  and  not  afterwards.  Phillips 
V.  Com.,  8  Wright,  197;  Com.  v.  Frey,  14  id.,  245. 

The  subject  of  comi)laint  in  the  thirteenth  specification  is 
substantially  the  same  as  that  involved  in  the  first  four  speci- 
fications, which  ha^'e  been  already  noticed.  The  record  shows 
that  the  indictuiei.c  was  duly  found  and  returned  by  the  grand 
jury,  and  that  they  were  duly  sworn  as  such  in  the  county  of 
Tioga  at  May  sessions,  1883.  Moreover,  it  is  too  late  to  take 
advantage  of  a  merely  formal  defect. 

The  refusal  to  set  aside  the  verdict  and  order  a  new  trial  is 
the  subject  of  complaint  in  the  fourteenth  specification.  It 
appears  one  of  the  jurors  by  whom  the  verdict  was  rendered 
was  related  to  the  person  who  is  alleged  in  the  indictment  to 
have  been  murdered,  and  the  fact  of  such  relationship  was  not 
known  to  the  prisoner  or  his  counsel  until  after  rendition  of 
the  verdict.  While  it  was  shown  to  the  satisfaction  of  the 
court  below  that  the  juror's  mother  and  the  mother  of  the 
murdered  woman  were  cousins,  and  the  fact  was  unknown  to 
the  prisoner  or  his  counsel  at  the  time  of  trial,  it  was  shown 
with  equal  clearness  that  the  juror  had  never  seen  the  mur- 
dered woman  or  heard  of  her  except  in  connection  with  the 
alleged  murder,  and  was  absolutely  ignorant  of  any  relation- 
ship untd  several  days  after  the  verdict  was  rend  red.  If 
the  fact  of  relationship  had  been  known  and  brought  to  the 
attention  of  the  court  before  the  juror  was  sworn,  he  doubt- 
less would  have  been  excused  or  successfully  challenged  for 
cause ;  but  it  was  unknown  to  the  court  as  well  as  the  counsel 
on  both  sides,  and  tlie  juror,  after  being  examined  in  the  usual 
manner,  was  accepted  and  sworn.  The  time  to  challenge  is 
before  the  juror  is  sworn ;  if  not  exercised  then,  the  right  is 
waived.    That  waiver  may  be  relieved  against,  when  the  party 


Try'- 


268 


AMERICAN  CRIMINAL  REPORTS. 


k:    . 


affected  has  been  intentionally  misled  or  deceived  by  the  juror 
or  the  opposite  party ;  but  it  is  not  even  pretended  there  was 
anything  of  the  kind  in  tTiis  case.  I^either  the  fairness  nor 
the  impartiality  of  the  verdict  is  assailed  on  any  ground  con- 
nected with  the  relationship  of  the  juror  to  the  murdered 
woman.  It  is  not,  and  cannot  be,  pretended  that  he  or  any  of 
his  fellows  were  in  any  manner  influenced  thereby.  As  the 
learned  president  of  the  court  below  well  remarked,  "  His  jud<^- 
ment  could  not  have  been  affected,  even  insensibly,  by  a  cir- 
cumstance of  which  he  had  not  the  slightest  knowledge."  The 
newly-discovered  relationship  was,  therefore,  no  reason  for  set- 
ting aside  the  verdict. 

The  remaining  specifications  —  fifteenth  to  twenty-second, 
inclusive  —  relate  to  the  charge  of  the  court.  There  is  noth- 
ing in  either  of  them  that  requires  special  notice.  Viewed  as 
a  whole,  the  charge  was  a  full,  clear  and  adequate  presentation 
of  the  case  to  the  jury.  The  case  was  properly  submitted  on 
all  the  testimony  before  them  without  binding  instructions  as 
to  the  facts,  and  the  prisoner  has  no  just  reason  to  complain 
that  he  has  not  had  a  fair  and  impartial  trial.  It  is  true,  the 
evidence  relied  on  by  the  commonwealth  was  mainly  circum- 
stantial, but  it  was  nevertheless  competent  and  proper  for  the 
consideration  of  the  jury.  If  they  believed,  as  they  doubtless 
did,  that  the  facts  and  circumstances  of  the  case,  as  they  found 
them  from  the  evidence,  pointed  clearly  and  satisfactorily  to 
his  guilt,  and  were,  at  the  same  time,  irreconcilable  with  any 
other  reasonable  hypothesis,  they  were  warranted  in  finding  as 
they  did.  With  them  was  the  responsibilitv.  The  court  below, 
being  satisfied  with  the  verdict,  refused  to  disturb  it ;  and  there 
appears  to  be  nothing  on  the  face  of  the  record  before  us  that 
would  justify  us  in  reversing  the  judgment  pronounced  thereon. 

The  ju(  gment  of  the  court  of  oyer  and  terminer  of  Tioga 
countv  is  affirmed,  and  it  is  ordered  that  the  record  be  remitted 
to  said  court  for  the  purpose  of  execution. 


in- 

I!' ;  ' 


IN  BE  HAKDIOAN. 


In  rb  Hardigan. 


269 


(57  Vt.,  100.) 
TTawwah  corpus:  Officer's  retwn  may  he  contradicted, 

1.  The  legality  of  commitment.—  The  relator  was  arrested  by  an  officer 

charging  him  with  being  intoxicated,  and  brought  before  a  justice  of 
the  peace  to  disclose  the  person  of  whom  he  obtained  his  liquor. 
He  disclosed  that  he  wal  not  intoxicated ;  that  he  had  not  drank  any 
intoxicating  liquor  on  the  day  of  his  arrest,  and  offered  other  testi- 
mony than  his  own  to  prove  that  fact;  but  the  justice  refused  to  hear 
it,  and  committed  him  to  jail  until  he  would  disclose.  Held,  that  the 
imprisonment  was  illegal,  and  that  the  relator  was  entitled  to  be  dis- 
charged on  habeas  corpus, 

2.  Justice  REJECTiNft  evidence  which  it  was  his  duty  to  hear.— The 

justice  should  have  tirst  determined  whether  the  relator  was  in  such  a 
state  of  intoxication  as  to  disturb  the  public  peace.  The  officer's  re- 
turn was  not  conclusive  of  that  fact,  and  the  relator  had  a  right  to 
meet  it  with  contradictory  proof,  which  it  was  the  duty  of  the  justice 
to  hear. 
8.  Rights  of  relator  not  dependent  upon  officer's  return. — In  a 
habeas  corpus  hearing  the  rights  of  the  relator  are  not  dependent  upon 
the  officer's  return ;  but  under  the  statute  (R.  L.,  sec.  1303}  he  may 
deny  the  return,  and  allege  otlior  material  tacts.  Thus  the  return 
showed  that  the  justice  found  that  the  relator  "had  been  intoxicated, 
and  h.id  disturbed  the  public  peace,"  but  the  supreme  court  find  from 
fatits  alleged  in  the  relator's  complaint  that  he  was  not  intoxicated. 

The  writ  was  signed  by  Rowell,  J.  By  consent  of  counsel 
the  case  was  continued  into  the  supreme  court. 

It  was  alleged  in  the  complaint  that  the  petitioner,  at  Mont- 
pelier,  on  the  3()th  day  of  May,  1881,  was  arrested  by  one 
Ordway,  claiming  to  be  a  police  olHcer,  and  was  placed  by  said 
otticer  in  tiie  county  jail,  and  there  remained  until  the  morning 
of  the  next  day,  when  he  was  taken  from  jail  and  brought  be- 
fore a  justice  of  the  peace;  that  said  Ordway  then  and  there 
I'opresented  to  said  justice  that  he  found  the  petitioner  on  said 
3()th  day  of  May  in  such  a  state  of  intoxication  as  to  disturb 
the  public  peace  and  tranquillity,  and  that  he  apprehended  the 
petitioner  when  so  intoxicated;  that  the  justice  ordered  the 
petitioner  to  disclose,  etc. ;  that  he  did  disclose,  as  stated  in 
the  opinion;  and  that  thereupon  the  justice  ordered  him  to  be 
committod  to  jail,  and  he  was  accordingly  committed  by  a 
sheriff;  wherefore  he  prayed  for  a  writ  of  habeas  corpus. 

The  writ  was  directed  to  the  jailer  of  Washington  county. 


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270 


AMERICAN  CRIMINAL  REPORTS. 


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The  following  is  a  part  of  the  mittimus  on  which  the  peti- 
tioner was  committed : 

"  Whereas,  E.  A.  Ordway,  police  officer  of  the  village  of 
Montpelier,  on  the  31st  day  of  May,  1884,  at  Montpelier,  in 
said  county,  brought  before  me,  O.  D.  Clark,  a  justice  of  the 
peace  within  and  for  said  county  of  "Washington,  John  Har- 
digan,  charging  him,  the  said  Hardigan,  with  having  been 
found  intoxicated  and  disturbing  the  public  peace  or  tranquil- 
lity of  the  village  of  Montpelier,  aforesaid,  on  the  30th  day  of 
May,  1;,^4,  and  the  fact  being  found  by  me  that  the  said  John 
Hardigan  bud  been  intoxicated,  and  had  disturbed  the  public 
peace  and  trantjuillity,  he  was  by  me  ordered  to  disclose,  under 
oath,  the  place  where,"  etc. 

O.  W.  Wing,  for  the  relator. 
S.  C.  ShurtU'ff,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

EoYCE,  C.  J.  The  right  of  a  justice  of  the  peace  to  com- 
pel a  person  to  disclose  the  place  where,  and  the  person  of 
whom,  he  has  obtained  the  intoxicating  liquor,  is  conferred  by 
Revised  Laws,  section  3810,  and  the  right  is  limited  to  tlio 
class  of  persons  specified  in  section  3814.  Th  v  are  there 
described  as  persons  found  in  such  a  state  of  intox.^^ation  as  to 
disturb  the  public  or  domestic  peace  and  tranquillity.  So  that, 
to  authorize  a  justice  to  demand  that  such  a  disclosure  be 
made,  and  order  a  party  to  be  committed  to  jail  if  he  refuses 
to  make  one,  the  justice  must  first  find  that  he  was  found  in 
such  a  state  of  intoxication.  Unless  that  fact  is  found  the 
justice  has  no  right  to  make  any  inquiry  upon  the  subject ;  his 
authority  is  limited  to  the  inquiry  as  to  the  place  where  and 
the  person  of  whom  the  liquor  so  producing  intoxication  was 
obtained. 

The  complaint  upon  which  this  writ  was  awarded  was  veri- 
fied by  the  oath  of  the  relator;  and  in  it  he  alleges  that  when 
he  was  required  by  the  justice  to  disclose,  after  having  been 
duly  sworn,  he  did  disclose  that  he  was  not  intoxicated  and 
had  not  drunk  any  intoxicating  liquor  on  the  day  of  his  arrest ; 
and  that  he  offered  to  show  to  said  court  by  other  testimony 
than  his  own  that  he  was  not  so  intoxicated  at  the  time  of  his 


IN   RE   HARDIGAN. 


271 


arrest;  which  testimony  the  said  justice  refused  and  neglected 
to  hear.  It  was  competent  for  the  state  to  dispute  these  alle- 
sations  under  section  1363,  but  it  has  elected  to  submit  the 
or  3  upon  the  record  alone;  hence,  all  that  is  stated  in  the 
record  must  be  considered  as  true. 

It  being  admitted  that  the  relator  swore,  before  his  com- 
mitment, that  he  was  not  intoxicated  at  the  time  of  his  arrest, 
and  the  justice  having  refused  to  hear  the  other  testimony 
offered  by  him  to  prove  the  fact,  was  his  subsequent  imprison- 
ment under  the  mittimus,  which  is  a  part  of  the  record,  legal  ? 

We  are  aware  that  the  general  rule  is,  that  upon  the  hearing 
of  a  haheaH  corpus  the  court  will  not  review  the  rulings  or  find- 
ings of  the  court  under  whose  authority  the  alleged  impris- 
onment is  justified;  and  that  the  rights  of  the  relator  are 
dependent  upon  the  return  of  the  officer  and  the  copies  which 
are  made  a  part  thereof ;  but  that  such  return  is  not  conclusive 
is  evident.  Section  1303  provides  that  the  prisoner  may  deny 
any  of  the  facts  set  forth  in  the  return,  and  may  allege  other 
material  facts;  and  the  court  or  judge  may  in  a  summary 
manner  examine  into  the  cause  of  the  imprisonmeat  or  re- 
straint, and  hear  the  evidence  of  any  person  interested ;  and 
by  section  13fi4r  the  court  or  judge  is  required,  if  no  legal  cause 
is  shown  for  the  imprisonment  or  restraint,  to  discharge  the 
prisoner  therefrom. 

The  only  evidence  before  us  upon  which  a  finding  as  to  the 
legality  of  the  relator's  imprisonment  can  be  predicated  is  the 
complaint  sworn  to  by  him,  the  copies  of  record,  and  the  re- 
turn of  the  officer.  The  testimony  ofl'ered  by  the  relator  be- 
fore the  justice  was  not  of  an  uncertain  character,  nor  offered 
as  tending  to  show  a  fact,  but  to  prove  that  he  was  not  in  fact 
intoxicated  at  the  time  of  his  arrest.  When  testimony  is 
offered  to  prove  a  fact,  and  is  for  any  reason  excluded,  in  de- 
ciding the  question  of  its  admissibility  the  fact  that  it  was 
offered  to  prove  is  considered  as  having  been  proved.  The 
fact,  then,  that  the  testimony  was  offered  to  prove  must  be 
treated  as  having  beer,  proved ;  so  the  relator  was  ordered  to 
be  committed  to  jail,  when  in  fact  he  was  not  intoxicated  at 
the  time  of  his  arrest.  It  was  an  abuse  of  authority  by  the 
justice;  and  it  requires  no  argument  to  convince  that  such 
an  imprisonment  was  illegal. 


1-:^ 


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mrr^ 


W- 


272 


AMERICAN  CRIMINAL  REPORTS. 


I!  a 


Can  the  relator  be  relieved  from  such  imprisonment  upon  a 
writ  of  habeas  corpus  f    The  only  doubt  that  can  be  entertained 
upon  the  question  results  from  the  generality  of  the  language 
used  by  courts  in  the  promulgation  of  the  rule  above  referred 
to.     That  the  rule  is  not  to  be  regarded  as  one  of  universal  ap- 
plication is  evident  from  the  fact  that  by  R.  L.,  sec.  1363,  the 
relator  is  allowed  to  allege  other  material  facts,  and  that  the 
court  may  hear  the  evidence  produced  by  any  person  interested. 
What  fact  could  be  more  material  than  that  the  justice  order- 
ing the  imprisonment  did  not  have  any  jurisdiction  to  make 
such  an  order?    What  evidence  extrinsic  of  the  record  may  be 
used  upon  the  hearing  of  a  writ  of  habeas  corpus  has  always 
been  a  doubtful  question.     We  are  not  aware  that  any  rule 
upon  the  subject,  of  universal  application,  has  been  formulated. 
The  authorities  are  conflicting.    Considering  the  nature  of  the 
writ,  and  the  purposes  that  it  is  designed  to  accomplish,  the 
rules  of  evidence  to  be  observed  cannot  be  arbitrarily  pre- 
scribed, but  must  necessarily  be  varied  to  meet  the  exigencies 
of  individual  cases.     In  In  re  Poioers,  25  Vt.,  261,  the  principal 
question  considered  was  as  to  the  constitutionality  of  what  is 
now  R.  L.,  sec.  3816.     It  ap[)eared  in  that  case  that  the  relatoi- 
was  very  thoroughly  intoxicated  at  the  time  of  his  arrest ;  and 
that,  upon  his  examination  in  regard  to  the  person  of  whom  he 
obtained  the  liquor  by  which  he  became  intoxicated,  and  the 
manner  of  his  obtaining  it,  his  answers  were  not  satisfactory 
to  the  justice ;  and  he  was  committed  upon  a  mittimus  com- 
manding his  detention  until  he  should  make  disclosure.     It 
does  not  appear  that  any  evidence  was  offered  before  the  jus- 
tice tending  to  show  that  he  was  not  so  intoxicated;  and  in  tlio 
supreme  court  evidence  was  received  bearing  upon  tho  question 
of  his  intoxication ;  so  the  record  and  return  were  not  treated 
as  conclusive  in  that  case.     In  Tracy,  Ej: parte,  25  Vt.,  93,  Red- 
field,  Ch.  J.,  says  that  it  may  still  be  regarded  as  unsettled 
how  far  it  is  competent  for  this  court  to  revise  the  proceedings 
of  an  inferior  court  upon  habeas  corpus. 

Treating  the  return  of  the  ofiicer  upon  the  question  of  the 
relator's  intoxication  as  prima  facie  evidence  of  the  fact,  it 
was  the  right  of  the  relator  to  meet  that  evidence  by  contra- 
dictory proof ;  and  it  was  the  duty  of  the  justice  to  hear  such 
proof  when  oflFered.    It  is  no  answer  to  say  that  the  justice 


LOWERY  V.  HOWARD. 


273 


might  have  come  to  the  same  conchision  if  he  had  heard  it ;  it 
was  his  duty  to  hear  it  before  coming  to  any  conchision. 

In  Hathaway  v.  Holmes,  1  Vt.,  405,  in  the  opinion  dehvered 
by  Judge  Prentiss,  it  is  said  that  where  a  party  is  in  execution 
by  tlie  judgment  of  another  court  having  competent  Jurisdie- 
tioH,  the  court  will  not  examine  into  the  merits  of  the  judgment, 
nor  discharge  him,  if  the  execution  is  regular,  unless  some  mat- 
ter is  presented  extrinsic  of  the  judgment  which  entitles  him  to 
bo  discharged.  From  what  is  there  said,  the  fair  inference  is 
tliat  the  jurisdictional  question  is  open  to  inquiry. 

The  chief  excellence  of  this  writ  consists  in  the  easy,  prompt 
and  efficient  remedy  afforded  by  it  for  all  unlawful  imprison- 
ment. To  deny  the  relator  relief  under  it  in  this  case  would 
defeat  the  purpose  for  which  it  was  designed,  and  circumscriba 
the  benefits  secured  by  it  to  those  who  are  deprived  of  their 
personal  liberty  within  such  narrow  limits  as  to  deprive  it  of 
the  principal  value  we  have  been  educated  to  ascribe  to  it. 

It  is  adjudged  that  the  relator  is  illegally  imprisoned,  and  it 
is  ordered  that  he  be  discbarffcd. 


LOWEBY    V.  IIOWAKD. 

(103  Ind.,  440.) 

Habeas  conpus:  Plea  of  guilty  of  murder  —  Jury  must  fx  pxinishment. 

1,  Plea  op  guilty  — Jury  must  fix  punishment.— Where  a  prisoner 

pleads  guilty  to  a  charge  of  murder  in  the  first  degree,  it  is  error  for 
the  court  to  fix  his  punishment  without  calling  in  a  jury. 

2.  Erkoneous    judgment  —  Collateral    attack  —  Habeas  corpus. — 

Where  a  court  hiis  jurisdiction  of  the  person  and  subject-matter,  its 
judgment,  though  erroneous,  cannot  be  collaterally  assailed  on  habeas 
corpus. 

From  the  Judge  of  the  Clark  Circuit  Court. 

George  II.  Voigt  and  M.  Z.  Stannard,  for  appellant. 
F.  T.  Hord,  attorney-general,  F.  B.  Burke,  prosecuting  at- 
torney, and  IF.  B.  Ilord,  for  appellee. 

HowK,  J.    On  the  12th  day  of  September,  1885,  Eli  Lowery 
presented  to  the  Hon.  Charles  P.  Ferguson,  judge  of  the  Clark 
Vol.  V- 18 


274 


AMERICAN  CRIMINAL  REPORTS. 


:.t  I 


circuit  court,  in  vacation,  his  verified  petition  or  application 
for  the  issue  of  a  writ  of  habeas  corpus.     In  such  application 
Lowery  alleged  that  he  was  restrained  of  his  liberty  and  ille- 
gally confined  in  the  Indiana  State  Prison  South  by  the  appel- 
lee, Howard,  who  was  the  warden  of  such  prison.    Upon  the 
presentation  of  Lowery's  ap])lication  to  him  in  the  vacation  of 
his  court,  Judge  Ferguson  made  the  following  order:     "After 
duly  considering  such  iietition  and  application,  it  appearing 
upon  the  face  thereof  that  Eli  Lowery  is  in  the  custody  of 
Andrew  J.  Howard,  as  warden  of  the  Indiana  State  Prison 
South,  by  virtue  of  the  final  judgment  of  a  court  of  competent 
jurisdiction,  I  do  not  think,  under  section  1119,  Revised  Stat- 
utes 1881,  I  have  any  power  to  inquire  into  the  legality  of 
such  judgment.     In  my  opinion,  the  facts  stated  in  the  peti- 
tion do  not  make  x\.  prima  facie  case  in  favor  of  the  petitioner, 
so  as  to  authorize  the  issuing  of  a  writ  of  haheas  corpus,  as 
prayed  for.    Therefore  I  now  order  that  the  petitioner's  appli- 
cation for  a  writ  of  hahcas  corpus  be  and  the  same  is  refused.'' 
Lowery  excepted  to  this  order  of  the  judge,  and  has  appealed 
therefrom  to  this  court,  and  has  hero  assigned  such  order  as 
error.     Lowery  made  a  complete  record  of  his  conviction  of 
murder  in  the  first  degree,  and  of  his  sentence  to  the  Indiana 
State  Prison  South  for  and  during  his  natural  life,  a  part  of 
his  petition  or  application  for  the  issue  of  a  writ  of  hahoaft 
corpus.    It  ap])eared  from  this  record  that  at  the  June  term, 
1876,  of  the  Orange  circuit  court,  in  this  state,  an  indictment 
was  duly  found  and  returned  into  open  court,  charging  Lowery 
and  four  other  named  persons  with  the  commission  of  the 
crime  of  murder  in  the  first  degree  in  Orange  county ;  tliat 
afterwards,  at  the  same  term  of  such  Orange  circuit  court,  Eli 
Lowery  appeared  in  person  in  open  court,  and,  having  been 
arraigned  on  such  indictment,  for  plea  thereto  said  that  he  was 
guilty  as  therein  charged ;  that  thereupon,  on  the  same  day 
and  at  the  same  term,  the  Orange  circuit  court,  being  suffi- 
ciently advised,  found  that  Eli  Lowery  was  guilty  of  nmrder 
in  the  first  degree,  and  ihat  the  Orange  circuit  court  then  and 
there  adjudged  that  Eli  Lowery  was  guilty  as  charged  in  the 
indictment  of  murder  in  the  first  degree,  and  assessed  his  pun- 
ishment at  imprisonment  in  the  state's  prison  at  Jeffersonville. 
Indiana,  for  and  during  his  natural  life. 


I'f' 


LOWERY  V.  HOWARD. 


275 


After  setting  out  this  record  in  his  petition  or  application, 
EH  Lowcry  alleged  that  the  jiction  of  the  Orange  circuit  court 
in  finding  him  guilty  and  assessing  his  punishment  as  aforesaid 
Avithout  the  intervention  of  a  jury,  and  all  subsequent  pro- 
ceedings in  such  cause,  were  erroneous,  illegal  and  void,  as  he 
was  thereby  deprived  of  his  constitutional  right  to  a  trial  by 
a  jury,  and  that  his  restraint  and  confinement  in  such  prison  were 
illegal.  In  section  1119,  Revised  Statutes  1881,  it  is  provided  as 
follows:  "Nq  court  or  judge  shall  inquire  into  the  legality  of 
any  judgment  or  process  whereby  the  party  is  in  his  custody, 
or  discharge  him  when  the  term  of  commitment  has  not  ex- 
pired, in  either  of  the  cases  following:  .  .  .  Second.  Upon 
any  process  issued  on  any  final  judgment  of  a  court  of  com- 
petent jurisdiction.  .  .  ."  We  need  not  argue  for  the 
purpose  of  showing  that  the  Orange  circuit  court  was  "  a  court 
of  competent  jurisdiction."  It  had  exclusive  original  jurisdic- 
tion of  the  crime  charged  against  Eli  Lowery,  and  of  his  per- 
son, upon  that  charge.  The  proceedings  and  judgment  of  the 
Orange  circuit  court  against  Eli  Lowery,  after  he  had  inter- 
posed his  plea  of  guilty,  were  not  void,  therefore,  but  were 
merel}'  erroneous.  In  Church  on  Habeas  Corpus,  section  372, 
it  is  said:  "The  writ  of  haheas  corpus  cannot  be  used  as  a 
writ  of  error.  Mere  error  in  the  judgment  or  proceedings 
under  and  by  virtue  of  which  a  party  is  imprisoned  constitutes 
no  ground  for  the  issuance  of  the  writ,  and  it  is  well  settled 
by  both  the  state  and  federal  courts  that  a  judgment  or  sen- 
tence cannot  be  assailed  on  haheas  corpus  if  it  is  merely  erro- 
neous, the  court  having  given  a  wrong  judgment  when  it  had 
jurisdiction  of  the  person  and  subject-matter.  Thus,  where  one 
was  convicted  of  assault  with  intent  to  kill,  and  was  sentenced 
to  confinement  in  the  penitentiary  at  hard  labor,  when  such 
an  offense  was  not  punishable  by  confinement  in  the  peniten- 
tiary, it  was  simply  an  error  not  relievable  on  haheas  corpus^ 
and  the  remedy  was  appeal."  Ex  parte  Siehold,  100  IT.  S.,  371 , 
People  ex  rel.  v.  Ziscomh,  CO  N.  Y.,  559  (19  Am.  R,  211);  Ee 
parte  Bond,  30  Amer.  Rep.,  21.  In  this  court  it  has  been  uni- 
formly held  that  a  judgment,  however  erroneous  it  may  be, 
unless  it  be  absolutely  void,  cannot  be  assailed  in  a  collateral 
suit  or  proceeding  by  a  party  to  such  judgment.      Held  v. 


rim 
.'If?/ 


i         f 


n 


276 


AMERICAN  CRIMINAL  REPORTS. 


Mitchell,  93  Ind.,  409;  Dowell  v.  Lahr,  97  Intl.,  140;  liogm 
V.  Beauehavip,  102  Ind.,  33. 

In  Ex  parte  Watkins,  3  Pet.,  193,  which  was  a  petition  for 
the  writ  of  habeas  ('o/y>v.v.  Chief  Justice  Marshall  said:  "An 
imprisonment  under  a  judgment  cannot  he  unlawful  unless 
that  judgment  he  an  ahsolute  nullit\',  and  it  is  not  a  nullity  if 
the  court  has  general  jurisdiction  of  the  subject,  althougli  it 
should  be  erroneous."  The  Orange  circuit  court  had,  as  wo 
have  seen,  jurisdiction  of  the  subject-matter  and  of  the  person 
of  Lowory  when  it  rendered  the  judgment  against  him  under 
which  he  is  imprisoned.  That  court  erred,  wo  think,  wh(^u 
Lowery  interposed  his  plea  of  guilty  in  not  calling  a  jury  to 
say,  in  their  discretion,  whether  he  slundd  suffer  the  penalty  oi 
death  or  be  imprisoned  during  life;  but  that  error  of  the  court 
did  not  render  its  judgment  void.  Therefore  the  judgment 
cannot  be  assailed  collaterally  on  habeas  corpua.  Slate  ex  rel. 
V.  Jlwdoc'k,  80  Ind.,  124. 

Lowery's  counsel  rely  for  the  reversal  of  Judge  Ferguson's 
order  upon  the  recent  decision  of  this  court  in  Wia-tncfv.  State, 
102  Ind.,  51.  That  was  a  direct  appeal  from  the  judgment  of 
conviction  affixing  the  death  penalty,  and  can  have  but  little 
application  to  a  case  of  collateral  attack.  In  the  case  cited 
the  court  said :  "  After  the  a]>pellant's  plea  of  guilty  the  pro- 
ceedings and  judgment  of  the  court  are  erroneous,  and  errors 
of  so  grave  a  character  that  he  has  the  right  to  insist  u])on 
them  here,  as  affording  substantial  grounds  for  the  reversal  of 
the  judgment."  For  these  errors  it  was  there  held  upon  appeal 
that  the  judgment  must  be  reversed  and  set  aside. 

For  more  than  thirty  years  the  law  of  this  state  has  pro- 
vided that  one  who  is  found  guilty  of  murder  in  tlie  first  degree 
shall  either  suffer  the  extreme  penalty  of  death  or  be  impris- 
oned in  the  state's  prison  during  life,  in  the  discretion  of  the 
jury  trying  the  cause.  In  all  those  years  no  such  discretion 
has  ever  been  given  to  the  trial  court,  if  such  a  thing  were  pos- 
sible under  our  present  constitution.  It  was  error,  therefore, 
in  the  Orange  circuit  court  to  exercise  the  discretion  which  our 
law  confers  upon  the  jury,  and  not  upon  the  court,  and  to 
assess  Lowery's  punishment  at  imprisonment  in  the  state's 
prison  during  his  natural  life.  But  it  is  difficult  to  see  upon 
what  ground  Lowery  could  claim,  if  he  values  his  natural  life, 


LOWEkY  v.  HOWARD. 


277 


that  he  was  in  anywise  harmed  by  tlie  erroneous  action  of  the 
Orange  circuit  court,  of  which  lie  comphiins.  Upon  liis  plea 
of  guilty  the  law  required  that  he  should  suffer  one  or  the 
other  of  two  punishments,  and  of  these  two  the  court  nssessed 
against  him  what  is  generally  considered  as  the  milder  punish- 
ment. Even  if  his  case  were  before  us  upon  an  appeal  from 
the  judgment  of  the  Orange  circuit  court,  we  could  do  no  more 
(if  we  did  so  much)  than  to  reverse  the  judgment  and  remand 
the  cause,  with  instructions  to  submit  the  question  of  his  pun- 
ishm*  nt  upon  his  plea  of  guilty  to  the  discretion  of  a  jury. 
The  order  of  the  judge  in  vacation  is  affirmed,  with  costs. 

Note. —  IMicn  and  mider  vhat  cireinnfttdinrs  a  party  may  he  restored  to 
liberty  by  virtue  of  the  writ  of  habeas  eorpim. —  In  E.r  parte  Siebold,  100  U. 
S.,  371,  Mr.  Justice  Bradley  (<k'livoring  the  opinion  of  tJie  court)  said:  "The 
I)etitioners  in  this  case,  Albert  Siebold,  Walter  Tucker,  Martin  C.  Burns, 
I/'wis  Coleman  and  Henry  Bowers,  were  judges  of  election  at  difTerent  vot- 
ing precincts  in  the  city  of  Baltimore,  at  the  election  lield  in  that  city,  and 
in  the  state  of  Maryland,  on  the  5th  day  of  November,  1878,  at  which  repre- 
sentatives to  the  forty-sixth  congress  were  voted  for. 

"  At  the  Novemlx'r  term  of  the  circuit  court  of  the  United  States  for  the 
district  of  Maryland,  an  indictment  against  each  of  the  petitioners  was 
found  in  said  court,  for  offenses  alleged  to  have  been  committed  by  them 
respectively  at  their  respective  precincts  whilst  In'ing  such  judges  of  election ; 
upon  which  indictments  they  were  severally  tried,  convicted  and  sentenced 
by  said  court  to  fine  and  imprisonment.  They  now  apply  to  this  court  for 
a  writ  of  habeas  corpus  to  be  relieved  from  imprisonment. 

"  Before  making  this  application,  each  petitioner,  in  the  month  of  Septem- 
ber last,  presented  a  separate  petition  to  the  chief  justice  of  this  court 
(within  whoso  circuit  Baltimore  is  situated),  at  Lynn,  in  the  state  of  Con- 
necticut, where  he  then  was,  praying  for  a  like  //aftecs  coj'/)?m  to  be  relieved 
from  the  same  imprisonment.  The  chi(?f  justice  thereupon  made  an  order 
that  the  said  marshal  and  warden  should  show  cause,  l)efore  him,  on  the 
second  Tuesday  of  October,  in  the  city  of  Washington,  Avhy  such  writs 
should  not  issue.  That  being  the  first  day  of  the  present  term  of  this  court, 
at  the  instance  of  the  chief  justice  the  present  application  wa«  made  to  the 
court  by  a  new  petition  addressed  thereto,  and  the  petitions  and  papers 
which  had  been  presented  to  the  chief  justice  were  by  consent  made  a  part 
of  the  case.  The  records  of  the  several  indictments  and  proceedings  thereon 
were  annexed  to  the  respective  original  iwtitions  and  are  before  us.  These 
indictments  were  framed  partly  under  section  5515  and  partly  xmder  section 
5523  of  the  Revised  Statutes  of  the  United  States ;  and  the  principal  ques- 
tions raised  by  the  application  arc,  whether  those  sections  and  certain  sec- 
tions of  the  title  of  the  Revised  Statutes  relating  to  the  elective  franchise, 
which  they  are  intended  to  enforce,  are  within  the  constitutional  power  of 
congress  to  enact.    If  they  are  not,  then  it  is  contended  that  the  circuit 


!.;■'  ( 


•i;.^. 


gg£.. 


f-^l  • 


278 


AMERICAN  CRIMINAL  REPORTS. 


court  has  no  jurisdiction  of  the  cases,  and  that  the  convictions  and  son- 
tences  of  imprisonment  of  the  several  petitioners  were  illegal  and  void. 

"  The  jurisdiction  of  this  court  to  hear  the  case  is  the  first  point  to  !x^  t-x- 
amined.  The  question  is  whether  a  party  imprisoned  under  a  sentence  of  a 
United  States  court,  upon  a  con\iction  of  a  crime  created  by  and  imlietablo 
under  an  unconstitutional  act  of  congress,  may  be  discharged  froin  imprison- 
ment by  this  court  on  habeas  corpus,  although  it  has  no  appellate  jinisdie- 
tion  by  writ  of  error  over  the  judgment.  It  is  objected  tliat  the  rase  is  oiio 
of  original  and  not  appellate  jurisdiction,  and  therefore  not  within  the 
jurisdiction  of  this  court.  But  we  are  clearly  of  opinion  that  it  is  api)elliitu 
in  its  character.  It  requires  us  to  revise  the  act  of  the  circuit  court  in  milk- 
ing the  warrants  of  commitment  upon  the  convictions  referred  to.  T!iis, 
according  to  all  the  decisions,  is  an  exercise  of  appellate  power.  Ex  purtf. 
Burford,  3  Cranch.  448;  Ex  parte  Bollmuii  and  Swartotit,  4  id.,  100,  101 ;  A'.i; 
parte  Verger,  8  Wall.,  98. 

"  There  are  other  limitations  of  the  jurisdiction,  however,  arising  from  tin; 
nature  and  objects  of  the  writ  itself,  as  defined  by  the  common  law,  fioni 
which  its  name  and  incidents  are  derived.  It  cannot  l)e  used  as  a  mere  vrit 
of  error.  Mere  error  in  the  judgment  or  proceetlings,  under  and  by  '.  iiliie 
of  which  a  party  is  imprisoned,  constitutes  no  grt)und  for  the  i^-isue  of  tiie 
writ.  Hence,  uix)n  a  return  to  a  habeas  corpus,  that  the  prisoner  is  de- 
tained under  a  conviction  and  sentence  by  a  court  having  jurisdiction  of  the 
cause,  the  general  rule  is,  that  he  will  be  instantly  reminded.  No  intpiiry 
will  be  instituted  into  the  regularity  of  the  proceef'.ings,  unless,  jierhups, 
where  the  court  has  cognizance  by  writ  of  error  </r  ajjpeal  to  review  the 
judgment.  In  such  a  case,  if  the  error  be  ap;>arent  and  the  imprisonment 
unjust,  the  appellate  court  may,  ixjrhaps,  in  its  discretion,  give  immediate 
relief  on  habeas  corpus,  and  thus  save  tV.e  party  the  delay  and  exjjensc*  of  a 
writ  of  error.  Bac.  Abr.,  Hab.  Corp.,  B.  13;  BctheVs  Case,  Salk.,  348;  5 
Mod.,  19.  But  the  general  rule  Is,  that  a  convicti(jn  and  sentence  by  a  court 
of  competent  jurisdiction  is  Ii;wful  cause  of  imprisonment,  and  no  relief 
can  be  given  by  Imbeas  capus. 

"The  only  ground  on  which  this  court,  or  any  court,  without  some  spe- 
cial statute  authorizing  it,  will  give  relief  on  habeas  corj>((.s  to  a  prisoner 
under  conviction  and  sentence  of  another  court,  is  tlie  want  of  jurisdiction 
in  such  court  over  the  person  or  tlie  cause,  or  some  other  matter  rendering 
its  proceedings  v«)id. 

"  This  distinction  between  an  erroneous  judgment  and  one  that  is  illegal  or 
void  is  well  illustrated  by  the  two  cases  of  Ex  parte  Lange,  18  Wall.,  103, 
and  Ex  parte  Parks,  93  U.  S.,  18.  In  the  former  case,  we  held  that  tlie 
judgment  was  void,  and  released  tlie  iietitioner  accordingly ;  in  the  latter, 
we  held  that  the  judgment,  whether  erroneous  or  not,  was  not  voitl,  Iwcause 
the  court  had  jurisdiction  of  the  cause,  and  we  refused  to  interfere. 

"  Chief  Justice  Abbot,  in  Rex  v.  Siiddis,  1  East,  300,  said :  '  It  is  a  general 
rule  that,  where  a  person  has  been  committed  under  the  judgment  of  an- 
other court  of  competent  criminal  jurisdiction,  this  court  [the  king's  bencli] 
cannot  review  the  sentence  upon  a  return  to  a  habeas  corpus.  In  such 
cases  this  court  is  not  a  court  of  appeal.' 


LOWERY  V.  HOWARD. 


279 


"  It  is  stated,  however,  in  Bacon's  Abridgment,  probably  in  the  words  of 
Chief  Baron  Gilbert,  that,  '  if  the  commitment  be  against  law,  as  being 
made  by  one  who  had  no  jurisdiction  of  the  cause,  or  for  a  matter  for 
which,  by  law,  no  man  ought  to  be  punished,  the  court  are  to  discharge.' 
Bac.  Abr.,  Hab.  Corp.,  B.  10.  The  latter  part  of  this  rule,  when  applied  to 
iinj)risonment  under  conviction  and  sentence,  is  confined  to  cases  of  clear 
and  manifest  want  of  criminality  in  the  matter  charged,  such  iis  in  effect  to 
render  the  proceedings  void.  The  authority  usually  cited  under  this  head 
is  BwiheVs  Cme,  decided  in  1670.  Tliere  twelve  jurymen  had  been  con- 
victed in  tlie  oyer  and  terminer  for  rendering  a  verdict  (against  the  charge 
of  the  court)  acquitting  William  Penn  and  otliers,  who  were  charged  with 
meeting  in  conventicle.  Being  imjirisoned  for  refusing  to  pay  their  fines, 
tboy  applied  to  tlie  coiut  of  common  pleas  for  a  habpos  corpus;  and  though 
tlie  court,  liaving  no  jurisdiction  in  criminal  mutters,  hesitated  to  grant  the 
writ,  yet,  having  granted  it,  they  discharged  the  prisoners,  on  the  ground 
that  their  conviction  was  void,  inasmucli  jis  jurymen  cannot  be  indicted  for 
rendering  any  verdict  they  choose.  The  opinion  of  Cliief  Justice  Vaughan 
in  the  case  has  rarely  been  excelled  for  judicial  elotjuence.  T.  Jones,  13; 
S.  C,  Vauglian,  IS.");  .S'.  C,  C  Howell's  State  Trials,  99!). 

"  Without  attemjiting  to  decide  how  far  this  case  may  be  regarded  as  law 
for  tlu!  guidance  of  this  court,  we  are  clearly  of  opinion  that  the  question 
raised  in  the  cases  before  us  is  proper  for  consideration  on  habeas  coi'pus. 
The  validity  of  tlio  judgments  is  assailed  on  the  ground  that  the  acts  of  con- 
gress under  which  the  indictrr<^'nts  were  found  are  unconstitutional.  If 
this  position  is  well  taken,  it  affects  the  foundation  of  the  whole  proceed- 
ings. An  unconstitntional  law  is  void,  and  is  as  no  law.  An  offense  cre- 
ated by  it  is  not  a  crime.  A  conviction  under  it  is  not  merely  erroneous, 
but  is  illegal  and  void,  and  cannot  be  a  legal  cause  for  imprisonment.  It  is 
true,  if  no  writ  of  error  lies,  the  judgment  may  be  final,  in  the  sense  that 
there  may  be  no  means  of  reversing  it.  But  personal  liberty  is  of  so  great 
moment  in  the  eyt'  of  tlie  law  that  the  judgment  of  an  inferior  court  affect- 
ing it  is  not  deemed  so  conclusive  but  that,  as  we  have  seen,  the  question  of 
till!  court's  autiiority  to  try  and  imjirison  the  party  may  be  reviewed  on 
hdlx-ascorpiiH  hy  a  superior  court  or  judge  having  authority  to  award  the 
writ.  We  are  satisfied  tliat  the  ja'csent  is  one  of  the  cases  in  which  this 
court  is  authorized  to  take  such  jurisdiction.  We  think  so,  because,  if  the 
laws  are  unconstitutional  and  void,  the  circuit  court  acquired  no  jurisdic- 
tion of  the  causes.  Its  authority  to  indict  and  try  the  petitioners  arose  solely 
rpon  these  laws." 

In  Droini  v.  Duff  us,  60  Iowa.  193,  the  facts  are;  On  the  7th  day  of  April, 
1885,  the  petitioner,  John  L.  Brown,  presented  to  the  court,  in  session  at  Dav- 
eniwrt,  a  petition  averring,  in  substance,  that  he  was  wrongfully  restrained  of 
liis  lil)erty  at  tlie  city  of  Davenport  by  one  J.  H.  Duff  us,  and  he  asked  that 
a  writ  of  hahc<iH  corpus  should  issuf  to  tr5t  the  legality  of  his  imprisonment. 
The  court  granted  the  writ,  whicn  was  served  on  Duffus,  and  he  made  return 
thereto.  The  Hon.  A.  J.  Bakoi',  attorney-general,  and  the  Hem.  Galusha 
Parsons,  enqiloyed  as  special  counsel  by  the  state,  appeared  for  the  defend- 
ant, Duffus,  but  in  the  name  of  the  state,  and  filed  a  motion  to  quash  the 
writ ;  also  a  demurrer  to  the  petition  and  an  answer  to  the  petition.    The 


280 


AMERICAN  CRIMINAL  REPORTS. 


petitioner  fileft  a  demurrer  to  the  return  to  the  writ,  and  to  the  answer  filed 
in  the  name  of  the  state.  He  also  filed  a  reply  to  the  answer.  The  proceed- 
ings were  then  continued  to  tJ»e  Ajwil  term,  at  Dubuque,  where  the  several 
questions  raised  were  presented  at  one  hearing,  and  submitted  together  ft>r 
determuiation. 

Adams,  J.,  delivering  the  opinion  of  the  court,  said :  "  We  do  not  deem 
it  necessary  to  set  out  the  pleadings  in  full.  The  first  question  presented  in 
argument  pertains  to  the  jurisdiction  of  the  court  to  grant  the  writ,  iiiidtr 
the  circumstances  shown ;  the  second,  to  the  constitutionality  of  a  certain 
provision  of  statute.  The  undisputed  facts  appear  to  be  that  the  petitioner, 
Brown,  is  auditor  of  the  state  of  Iowa,  and  was  such  on  the  4th  daj'  of 
March,  1885,  having  been  duly  elected  as  such  at  the  annual  election  of  state 
officers  in  1884;  that,  on  the  day  above  mentioned,  Buren  R.  Sherman,  ji^ov- 
ernor  of  the  state,  filed  an  information  against  him  btsfore  a  justice  of  tin- 
lieace  of  Polk  county,  in  which  he  accused  Brown  of  a  misdemeanor  in  tou- 
tinuiug  to  exercise  the  functions  of  his  otlico  as  auditor  after  he  had  been 
suspended  from  the  exercise  thereof;  that  Brown  was  arrt'sted  and  l)rou;j;lit 
before  the  justice,  and  having  filed  a  plea  of  not  (jiiUtij,  and  having  waived 
an  examination,  he  was  held  to  bail,  and  gave  a  bond,  with  the  defendant. 
Duffus,  and  one  Pierce  Jis  sureties;  that,  afterwards.  Pierce  gave  Duirus  an 
order  in  writing,  as  provided  by  statute,  authorizing  hhn  to  arrest  Brown 
for  the  purjtose  of  surrendering  him  to  the  sherilT  of  Pollc  county  in  exonera- 
tion of  the  bail;  that,  under  such  order,  Duflus  arrested  Brown  in  the  city 
of  Davenport,  where  this  court  was  then  in  session,  and,  upon  petition  by 
Brown,  the  writ  of  halteas  corpim  was  granted  by  this  court,  as  above  set 
forth. 

"  The  petitioner  does  not  deny  that  the  governor  made  an  order  suspending; 
liim  from  exercising  the  functions  of  liis  ofiicoas  auditor,  an<l  does  not  deny 
that  he  continued  to  exercise  the  functions  of  such  oflico  after  the  order  was 
made,  and  does  not  deny  that  there  is  a  provision  of  statute  which  makes 
such  continuance  a  misdemeanor;  but  liis  position  is  that  the  statute  author- 
izing the  governor  to  make  such  suspension  is  unconstitutional  aiid  void, 
and  that  the  order  of  suspension  was  consecjuently  a  void  act,  and  that  liis 
continuing  to  exerci.se  the  functions  of  his  ofiice  was  accordingly  not  a  mis- 
demeanor, but  a  duty  wliich,  under  his  oath  of  oflico,  he  was  bound  to  jhm- 
form.  The  state  not  only  asserts  the  constitutionality  of  the  statute,  anil 
the  legality  of  all  things  done  under  it,  but  contends  in  addition  that,  even 
if  the  statute  were  unconstitutional  ami  the  petitioner  <lid  not  commit  a  mis- 
demeanor in  continuing  to  exercise  the  functions  of  his  ofn<'e  after  the  order 
of  susjjension,  the  restraint  imposed  by  DulTus  is  not  illegal,  iis  shown  upon 
the  face  of  the  papers ;  and  if  not,  that  the  court  had  no  power  to  grant  the 
wi'it,  and  ought  now  to  sustain  the  nu)ti<jn  to  (pnish  it.  This  question  pre- 
sents itself  upon  the  threshold,  and  demands  our  first  attention. 

"  The  position  of  the  .state  is  that  Duff  us  incurred  a  liability  for  the  appear- 
ance of  Brown  in  the  district  court;  that  lie  incurred  such  liability  under 
the  statute  which  gave  him  a  right  to  surrender  Brown  to  the  sheriff,  and 
exonerate  himself  and  his  co-surety,  and  that  ho  camiot  properly  be  deprived 
of  such  right  by  a  proceeding  which  should  result  in  taking  Brown  from  his 
custody  and  setting  him  at  large.    It  must,  we  think,  be  conceded  tliat 


LOWERY  V.  HOWARD. 


281 


Brown,  having  invited  Duflfus  and  Pierce  to  become  his  sureties,  cannot  he 
allowed  to  resort  to  any  proceeding  which  should  have  the  effect  to  render 
thoni  liable  upon  the  Lo!id.  But  Brown  proposes  to  test,  in  advance  of  his 
discharge,  the  question  of  the  constitutioiuility  of  the  statute  under  which  ic 
is  said  that  his  criminal  liability  has  arisen ;  and  his  position  is  that  if  the 
statute  shall  bo  held  uuconstitutional,  and  his  innocence  shall  accordinglj' 
be  declared  by  a  coui't  having  jurisdiction  to  determine  the  same,  the  state 
could  no  longer  have  any  claim  upon  his  sureties ;  and  we  have  to  say  that 
we  think  that  his  position  in  this  respect  must  be  sustained.  In  our  opinion, 
then,  the  court  had  jurisdiction  to  grant  the  writ. 

"It  is  claimed  by  the  state,  however,  that  the  arrest  of  Brown  by  Dulfus  is 
collusion,  and  that  thc're  is  enough  uixin  the  face  of  the  papers  and  proceed- 
ings to  sliow  such  fact.  But  it  is  certain  that,  under  the  statute,  Dutfus  had 
a  right  to  arrest  Brown,  whether  he  wa«  willing  to  be  arrested  or  not;  and 
we  think  tliat,  however  willing  Brown  might  be  that  Dutfus'  rights  should 
be  .iccorded  to  hiiri,  wo  cannot  say  that  the  restraint  is  fictitious,  and  that 
Brown  lannot  be  allowed  to  test  the  legality  of  it.  Indeed,  it  seems  to  us 
that  as  the  <iues(ii)n  involved  pertains  simply  to  the  constitutionality  of  a 
statute,  and  as  its  speedy  determination  is  of  considerable  importance  to  the 
jniblic  interest,  tiie  mode  adopted  for  its  determination  is  rather  to  be  com- 
mended than  otherwise." 

In  Ex  parte  Lanrjp.,  18  Wallace,  163.  Edward  Lange  filed  a  petition  to  the 
supreme  court  at  a  former  day,  praying  for  a  writ  of  hdhaiH  corpus  to  the 
marshal  for  the  soutiiern  district  of  New  York,  on  the  allegation  that  he 
was  unlawfully  inn)risoned  under  .an  order  of  the  circuit  court  of  the  United 
States  for  tliat  district.  On  consideration  of  the  petition,  the  court  was  of  opin- 
ion that  file  facts  which  it  alleged  very  fairly  raised  the  question  whether  the 
circuit  court,  in  tlie  sentence  which  it  had  pronounced,  and  under  which 
the  prisoner  was  held,  had  not  exceeded  its  jvnvers.  It  thereffire  directed 
the  writ  to  issue,  accompanied  also  by  a  writ  of  certiorari,  to  bring  before 
that  court  the  proceedings  in  the  circuit  court  umler  which  the  petitioner 
wa.s  restrained  of  his  liberty. 

The  facts  were  stilted,  by  the  learned  justice  who  delivered  the  opinion  of 
the  court,  as  follows : 

"The  jietitioner  hatl  been  indicted  under  an  act  of  congress,  ]>assed  8th 
June,  1872  (17  Stat,  at  Large,  320,  ,^  290),  for  stealing,  purloining,  endiezzling 
and  approi)riating  to  his  own  use  certain  mail-bags  belonging  to  the  post- 
ofTico  department.  Upon  tlio  trial,  on  the  22d  day  of  Octol)er,  1873,  the 
jury  found  liim  guilty  of  .ajipropriating  to  liis  own  use  mail-bags,  the  value 
of  wiiich  was  less  tlum  .^LM;  the  punishment  for  which  offense,  as  provided 
in  said  statute,  is  imprisonment  fi)r  not  more  tlian  one  year  or  a  fine  of  not 
less  than  .*!10  nor  more  than  .*200.  On  the  3d  day  of  November,  1873,  the 
judge  presiding  sentenced  the  i)etitioner  under  said  conviction  to  one  year's 
imprisonment,  atid  to  i)ay  $200  fine.  The  petitioner  was,  on  snid  day,  com- 
mitted to  jail  in  execution  of  the  sentence,  and  on  the  following  day  the 
flno  wiis  paid  to  the  clerk  of  the  court,  who,  in  turn,  and  on  the  7th  day  of 
November,  1873,  paid  the  same  into  the  treasurj-  of  the  LTnited  States, 

"On  the  8tli  day  of  the  same  month  the  prisoner  was  brought  before  the 


2S2 


AMERICAN  CRIMINAL  REPORTS. 


court  on  a  writ  of  habeas  corpus,  the  same  judge  presiding,  and  an  order 
was  entered  vacating  tlie  former  judgment,  and  the  prisoner  was  again  sen- 
tenced to  one  year's  imprisonment  from  that  date ;  and  the  return  of  the 
marshal  to  the  writ  of  habeas  corpus  showed  that  it  was  under  tiiis  lutt'T 
judgment  that  he  held  the  prisoner.  It  was  conceded  that  all  this  wiis  dur- 
ing the  same  term  at  whicli  his  trial  took  place  before  the  jury.  A  second 
writ  of  habeas  corpus,  issued  by  the  circuit  judge,  was  returned  into  the 
circuit  court,  when  the  two  district  judges  sat  with  him  on  the  hearing,  and 
the  writ  was  discharged  and  the  petitioner  remanded  to  the  custody  of  the 
marsli.al." 

Mr.  Justice  Miller,  delivering  the  opinion  of  the  court,  sjiid:  *'  But  it  has 
been  said  that,  conceding  all  this,  the  judgment  under  wliich  the  prisoner  is 
now  held  is  eri'oneous,  but  not  void ;  and  as  this  court  cannot  review  that 
judgment  for  error,  it  can  discharge  the  prisoner  only  when  it  is  void. 

"But  we  do  not  concede  the  major  premise  in  this  argument.  A  judgment 
may  \>e  erroneous  and  not  void,  and  it  may  be  erroneous  because  it  is  void. 
The  distinctions  between  void  and  merely  voidable  judgnicMils  are  very  nice, 
and  they  may  fall  under  the  one  class  or  the  other  as  tliey  are  regarded  for 
different  purposes. 

"We  are  of  opinion  that  when  the  prisoner,  as  in  tliis  case,  by  reason  of  a 
valid  judgment,  had  full}-  suffered  one  of  the  alternative  jmnishments  to 
which  alone  the  law  subjected  him,  the  power  of  the  court  to  jainish  fur- 
ther was  gone.  That  the  principle  we  have  discussed  then  interposed  its 
shield,  and  forbid  that  he  should  be  punished  again  for  that  offense.  The 
record  of  the  court's  proceedings,  at  the  moment  the  second  sentence  was 
rendered,  showed  that  in  that  very  case,  and  for  that  very  offensi',  the  j)ris- 
oner  had  fully  performed,  couipletec'  and  endured  one  of  the  alternative 
punishments  which  the  law  prescribed  for  that  offense,  and  had  suffered 
five  days'  impris(mment  on  account  of  the  other.  It  thus  sliowed  the  court 
that  its  power  to  punish  for  that  offense  was  at  an  end.  Unless  the  wliole 
doctrine  of  our  system  of  jurisprudence,  botli  of  the  constitution  and  the 
common  law,  for  the  protection  of  pei'sonal  rights  in  that  regard,  are  a 
nullity,  the  authority  of  the  court  to  punish  the  i)rison('r  was  gone.  Tlie 
l>ower  was  exhausted ;  its  further  exercise  w:us  prohibited.  It  was  error,  but 
it  was  error  because  the  power  to  render  any  further  judgment  did  not 
exist. 

"  It  is  no  answer  to  this  to  say  that  the  court  had  jurisdiction  of  tlie  person 
of  the  prisoner,  and  of  the  offense,  under  the  statute.  It  by  no  means  fol- 
lows that  these  two  facts  make  valid,  however  erroneous  it  may  be,  aiiy 
judgment  the  court  nmy  render  in  such  case.  If  a  justice  of  tiio  peace, 
having  jurisdiction  to  fine  for  a  misdemeanor,  and  with  tlie  party  charged 
properly  before  him,  should  render  a  judgment  that  he  be  hung,  it  would 
.simply  be  void.  Wliy  void?  Because  lie  had  no  power  to  render  such  a 
judgment.  So,  if  a  court  of  general  jurisdiction  should,  on  an  indictment 
for  libel,  render  a  judgment  of  death,  or  confiscation  of  property,  it  would, 
for  the  same  reason,  b(!  void.  Or  if,  on  an  indictment  for  treason,  the  court 
should  render  a  judgment  of  attaint,  whereby  the  heirs  of  the  criminal 
could  not  inherit  his  i)roi)erty,  which  sliould  by  the  judgment  of  the  court 


LOWERY  V.  HOWARD. 


283 


lie  confisoateil  to  the  state,  it  would  be  void  as  to  the  attainder,  because  in 
♦'xcess  of  tlie  autliority  of  the  court  and  forbidden  by  the  constitution. 


"There  is  no  more  sacred  duty  of  a  court  tlian,  in  a  case  properly  before  it, 
to  maintain  unimpaired  those  securities  for  the  pei-sonal  rights  of  the  indi- 
vidual which  have  received  for  ages  the  sanction  of  the  jurist  and  the  states- 
man ;  and  in  such  cases  no  narrow  or  illiberal  construction  should  be  given 
to  the  words  of  the  fundamental  law  in  which  they  are  embodied.  With- 
out straining  either  the  constitution  of  the  United  States  or  the.  well-settled 
princijjles  of  the  coninion  law,  we  have  come  to  the  conclusion  that  the 
sentence  of  the  circuit  court  under  which  the  petitioner  is  held  a  prisoner 
wiis  pronounced  without  authority,  and  he  should  therefore  be  discharged."' 

In  Ex  parte  Yarbrough,  110  U.  S..  C51,  Mr.  Justice  Miller,  delivering  the 
opinion  of  the  court,  said:  "Whether  the  indictment  sets  forth  in  compre- 
hensive terms  the  offense  which  the  statute  describes  and  forbids,  and  for 
wiiicli  it  prescribes  a  i)unishnient,  is  in  every  case  a  question  of  law,  which 
nmst  nect.'Hsarily  lie  ilecided  by  the  court  in  wliich  the  case  originates,  and 
is  therefore  clearly  within  its  jurisdiction.  Its  decision  on  tlie  conformity 
(if  the  indictment  to  the  provisions  of  the  stiitute  may  be  erroneous,  but  if 
so  it  is  an  error  of  law  made  by  a  court  acting  within  its  jmisdiction,  which 
could  be  correctetl  on  a  writ  t>f  error  if  such  writ  was  allowed,  but  which 
cannot  bo  looked  into  on  a  writ  of  habeas  corinis  limited  to  an  inquiry  into 
tlie  existence  of  jurisdiction  on  the  part  of  that  court. 

"  Tins  ])rinciple  is  decided  in  Ejc parte  Tobias  IVatkins,  3  Pet.,  203,  and  Ex 
parte  Parks,  93  U.  S.,  18. 

"This,  however,  leaves  for  consideration  the  more  important  question  — 
the  one  mainly  relied  on  by  counsel  for  petitioners  —  whether  the  law  of 
congress,  as  found  in  the  Revised  Statutes  of  the  United  States,  under 
which  the  prisoners  are  held,  is  warranted  by  the  constitution,  or,  being 
without  such  warrant,  is  null  and  void. 

"  If  the  law  winch  defines  the  offense  and  prescribes  its  punishment  is  void, 
the  court  was  without  jurisdiction  and  the  prisoners  must  be  discharged." 

In  People  ex  ret,  Tiveed  v.  Liscomb,  60  N.  Y.,  559,  Allen,  J.,  said: 
"  Tiie  question  of  gravest  inqwrt,  and  which  is  to  be  considered  in  limine, 
as  that  upon  which  the  jurisdiction  of  the  court  to  consider  the  other  ques- 
tion depends,  relates  to  the  office  and  effect  of  the  writ  of  habeas  corjms, 
under  our  system  of  jurisprudence,  and  the  statutes  of  the  state  r«*gulating 
proc^eedings  under  it.  Relief  from  illegal  imi)risonment  by  means  of  this 
remedial  writ  is  not  tlie  creature  of  any  statute.  The  history  of  the  writ  is 
lost  in  antiquity.  It  was  in  use  beft>re  Magna  Charta,  and  came  to  us  as  a 
part  of  our  inheritance  from  tlie  mother  country,  and  exists  as  a  part  of  the 
common  law  of  the  state.  It  is  intended  and  well  adapted  to  effect  the  great 
object  secured  in  England  by  Magna  Charta,  and  made  a  part  of  our  consti- 
tution, that  no  person  shall  be  deprived  of  his  liberty  '  without  due  process 
of  law.'    Const.,  art.  1,  sec.  6. 

"Whenever  the  virtue  andapplicability  of  the  writ  havelieen  attacked  or 
impugned,  it  has  been  defended,  and  its  vigor  and  .lliciency  reasserted,  as 
the  great  bulwark  of  liberty.  The  statutes  which  have  been  passed  in 
England  from  the  time  of  Charles  II.  (31  Car.  3,  c.  2),  and  in  this  state  from 


r 


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2S1 


AMERICAN  CRIMINAL  REPORTS. 


the  time  of  its  first  organization,  have  not  been  intended  to  detract  from  its 
force,  but  rather  to  add  to  its  efficiency.  They  have  been  intended  to  pre- 
vent the  writ  being  rendered  inoperative,  by  increasing  the  facilities  for 
procuring  it,  enlarging  the  class  of  officers  having  jurisdiction  in  respect  of 
it,  imposing  penalties  for  refusal  to  grant  it,  or  to  obey  it,  and  providing  for 
a  si)eedy  return,  and  a  prompt  trial  and  discharge  of  the  person,  if  not  held 
according  to  the  law  of  the  land.  3  Bl.  Com.,  "[35;  Ecc parte  Wiitkim,  a 
Peters,  193.  The  earlier  statutes  of  this  state  did  not  profess  to  deal  with 
or  regulate  the  common  law  jurisdiction  over  this  writ,  which  existed  in  the 
supreme  court  and  court  of  chancery,  but  had  respect  oidy  to  the  jurisdic- 
tion conferred  by  statute  upon,  and  exercised  by  judicial  officers  out  of 
court. 

'•  The  Revised  Statutes  regulate  the  exercise  of  this  jurisdiction,  as  wcl  by 
courts  as  magistrates,  embracing  not  only  cases  in  vacation,  but  in  '  rni 
time.  2.  R.  S.,  503;  5  id.  (Edm.  ed.),  511,  revisers'  notes.  This  writcannot 
be  abrogated  or  its  efficiency  curtailed  by  legislative  action.  Cases  within 
the  reli«'f  afforded  by  it  at  common  law  cannot,  until  tlie])eoi)le  voluntarily 
sun-ender  tlie  right  to  this,  the  greatest  of  all  writs,  by  an  amendment  of 
the  org.anic  law,  be  placed  beyond  its  reach  and  remedial  action.  The  priv- 
ilege of  the  writ  cannot  even  l)e  temporarily  suspended,  except  for  ibe  safety 
of  the  state,  in  cases  of  rebellion  or  invasion.     Const.,  art.  1,  sec.  4. 

"  The  remedy  against  illcg.al  imprisonment  afforded  by  this  writ,  as  it  was 
known  and  used  at  common  law,  is  placed  beyond  the  pale  of  legislative 
discretion,  except  that  it  may  be  suspended  when  i)ublic  safety  requires,  in 
either  of  the  two  emergencies  named  in  the  constitution.  This  i)rovisi()n  of 
the  constitution  is  a  transcript  of  the  former  constitution  of  the  state,  and 
it  cannot  be  intended  tliat  the  framers  of  the  Revised  Statutes,  bj'  which  the 
practice  of  the  courts  in  term  time  was  placed  under  the  same  regulations 
as  that  which  had  from  tlie  first  l)een  prescribed  for  the  officers  upon  whom 
power  had  been  conferred  from  time  to  time  by  statute,  designed  to  inter- 
fere with  the  principles  governing  the  exercise  of  the  jurisdiction,  or  lessen 
the  value,  the  efficiency  or  importance  of  the  writ  itself,  which,  in  respect 
of  the  jurisdiction  of  the  supreme  court  and  court  of  chancery,  was  beyond 
the  reach  of  legislation. 

"  Bringing  the  procedure  in  term  time,  as  well  as  in  vacation,  within  the 
same  general  rules,  removes  all  doubt  that  the  intent  was  that  every  court 
and  officer  having  power  to  grant  a  writ  of  habeas  corjms,  and  to  pass  upon 
the  legality  of  an  imprisonment,  has  and  may  exercise,  in  the  forms  pre- 
Bcrilx>d  by  law,  all  the  power  exercised  at  conmion  law  by  the  court  of 
king's  bench,  in  England,  and  the  supreme  court  of  this  state,  as  the  corre- 
sponding tribunal  with  us. 

"  There  is  no  occasion  to  be  alarmed,  or  to  bo  frightened  out  of  our  propri- 
ety, lest,  by  reason  of  the  number  of  magistrates  to  whom  this  great  power 
has  been  com.mitted,  the  judgments  of  superior  courts  will  be  nullified  and 
judicial  proceedings  rendered  nugatory,  so  far  as  they  interfere  with  per- 
sonal liberty.  The  power  has  existed  in  many  inferior  magistrates  for  more 
than  three-fourths  of  a  century,  and  the  laws  and  judgments  of  courts 
liave  been  executed  without  imseemly  interniption  by  means  of  this  writ 
of  liberty ;  and  although  a  third  of  a  century  since  a  distinguished  executive 


LOWERY  V.  HOWARD. 


285 


of  the  state  called  the  attention  of  the  legislature  to  the  very  danger  now- 
invoked  as  a  reason  for  so  construing  the  statute  as  to  contract  the  jiu'is- 
(Ii(*tion  of  tliis  writ,  the  legislature  did  not  participate  in  the  fears  expressed, 
and  suffered  the  statutes  to  remain  in  that  form,  V)y  which  the  liherty  of  the 
cdtizen  would  have  the  largest  protection,  3  Hill,  649,  note.  It  is  no  new- 
feature  in  the  law  that  inferior  magistrates  may,  when  thereunto  called,  sit 
in  judgment  upon  the  jurisdiction  of  the  highest  courts,  when  their  process 
or  judgments  come  collaterally  before  them.  Trespass  will  lie  for  prop- 
erty seized,  or  for  the  imprisonment  of  a  person  by  virtue  of  the  judgment 
of  the  highest  court  of  the  state,  if  it  has  not  jurisdiction  of  the  person,  or 
to  give  the  judgm«.'nt,  and  a  justice  of  the  peace  must  pass  upon  the  juris- 
diction, if  the  action  chances  to  be  before  him  for  trial.  It  matters  not 
what  the  general  i)owers  and  jurisdiction  of  a  court  may  be ;  if  it  act  with- 
out authority  in  the  particular  case,  its  judgments  and  orders  are  mere 
nullities,  not  voidable,  but  simply  void,  protecting  no  one  acting  under 
them,  and  cixistituling  no  hindrance  to  the  prosecution  of  any  right.  Elliot 
V.  Peirsol,  1  Pet.,  iV28.  The  distinction  between  courts  of  limited  and  of 
general  jurisdiction  is  this:  that  when  their  acts  and  judgments  are  relied 
upon,  either  as  giving  a  right  or  furnishing  a  defense,  jurisdiction  of  the 
latter  is  presumed,  while  that  of  the  former  must  be  proved;  but  the  pre- 
sumption in  favor  of  the  jurisdiction  of  the  court  of  general  jurisdiction  is 
one  of  fact,  and  not  conclusive.  It  may  1)0  rebutted.  If  it  depends  upon 
the  existence  of  certain  facts,  and  the  court  has  j)assed  ujton  those  facts, 
the  determination  is  conclusive  until  its  judgment  has  been  reversed  or  set 
juside,  and  this  rule  is  as  applicable  to  the  juilgments  of  inferior  as  of  superior 
courts.  St<t2>les  v,  Fdhrhild,  3Comst.,  41;  Chemung  Canal  Bank  v.  Jud- 
mn,  4  Seld.,  254.  There  is  nothing  startling  in  the  application  of  these  well 
rec^ognized  principles  to  proceedings  by  the  habeas  eorjiUH  in  favor  of  the 
citizen  restrained  of  his  liberty,  under  color  of  judicial  proceedings,  abso- 
lutely void.  Neither  should  the  habeas  corpus  act,  which  judges  have 
'  revered  as  the  bulwark  of  the  constitution,  the  Magna  Charta  of  i)ersonal 
rights,'  '  be  sliorn  of  its  power  and  its  glory  by  a  subtle  and  metaphysical 
interpretation;  rather  should  it  receive  a  liber.al  construction,  in  harmony 
with  its  grand  purpose,  and  in  disregard,  if  need  be,  of  technical  language 
used. 

"  This  act  has  always  been  construed  in  favor  of,  and  not  aga'.nst,  the  liberty 
of  the  subject  and  the  citizen ;  and  the  reading  must  be  the  same  whether 
the  l)eneflt  of  it  is  invoked  by  the  purest  and  best  citizen  of!  the  state,  or  the 
greatest  sinner,  and  the  one  most  worthy  of  condign  punishment.  The  law- 
is  no  resiwcter  of  persons,  and  suffere  no  man,  be  he  giiilty  or  innocent,  to 
be  deprived  of  his  lilHjrty,  except  '  by  due  process  of  la«' ; '  a. id  the  writ  of 
habeas  corpus  is  as  available,  even  to  the  guilty,  and  he  whoii  i  the  popular 
voice  would  condemn,  as  it  has  proved  against  commitmints  by  the  king  in 
council.  But  the  act  needs  no  interpretation,  and  is  in  full  accord  with  the 
common  law,  and  the  adjudications  both  in  this  state  and  in  England,  and 
with  the  constitution. 

"  Persons  committed  or  detained  by  virtue  of  the  final  judgment  or  decree 
of  any  competent  tribunal  of  civil  or  criminal  jurisdiction,  or  by  virtue  of 
any  execution  issued  upon  such  judgment  or  decree,  are  expressly  excluded 


W 


m 


286 


AMERICAN  CRIMINAL  REPORTS. 


from  the  benefit  of  the  act.  2  R.  S.,  56.3,  sec.  22.  And  if,  upon  the  return 
of  the  writ,  it  appears  that  the  party  is  detained  in  custixly  by  virtue  of  sucli 
judgment  or  decree,  or  any  execution  i8sue<l  thereon,  he  must  be  remanded. 
Id.,  567,  sec.  40.  Such  persons  are  deprived  of  their  liberty  '  by  due  process 
of  law,'  and  are  not  witlun  the  purview  of  the  constitution,  or  the  purposes 
of  the  writ.  To  bar  the  applicant  from  a  discharge  from  arrest  by  virtue  of 
a  judgment  or  decree,  or  an  ex(!cution  tliereon.  the  court  in  which  the  judg- 
ment or  decree  is  given  must  have  had  jurisdiction  to  render  such  judgment. 
The  tribunal  must  be  competent  to  render  the  judgment  under  some  circum- 
stances. Tlie  prohibition  of  the  forty-second  section  of  tlie  habcatt  corpus 
act,  forbidding  tlie  inquiry,  by  the  court  or  officer,  into  the  legality  of  any 
previous  judgment,  decree  or  execution,  specified  in  the  twenty-second  sec- 
tion, does  not  and  cannot,  without  nullifying,  in  goo«l  measure,  the  pro- 
visions of  that  and  other  sections  of  the  act,  take  from  the  court  or  oflicer 
the  power,  or  relieve  him  from  the  duty  of  determining  whether  the  process, 
judgment,  decree  or  execution  emanated  from  a  court  of  competent  juris- 
diction ;  and  whether  the  court  making  the  judgment  or  decree,  or  issuing 
the  process,  hail  the  legal  and  constitutional  power  to  give  such  judgment, 
or  send  forth  such  process.  It  simi)ly  })rohibits  the  review  of  the  decision 
of  a  court  of  competent  jurisdiction.  If  the  record  shows  tiiat  the  judg- 
ment is  not  merely  erroneous,  but  such  as  could  not,  under  any  circum- 
stances, or  upon  any  state  of  facts,  have  been  pronounced,  the  case  is  not 
within  the  exception  of  the  statute,  and  the  appli<'ant  must  be  discharged. 
If  the  judgment  is  merely  erroneous,  tiie  court  having  given  a  wrong  judg- 
ment when  it  had  jurisdiction,  the  party  aggrieved  can  only  have  relief  l)y 
writ  of  error,  or  other  process  of  review.  He  cannot  be  relieved  summarily 
by  halteas  corpus. 

"  The  inquiry  is  necessarily  in  every  case  whether  the  process  is  void,  and 
the  officer  or  court  having  jurisdiction  of  tlie  writ  must  pass  upon  it.  If 
a  process  good  in  form,  issued  upon  a  judgment  of  a  court  having  juris- 
diction, either  general  or  liniiteil,  must  in  all  cases  be  assumed  to  be  valid 
until  the  judgment  be  reversed  upon  error,  the  remedy  by  writ  of  habeas 
corpus  will  be  of  but  little  value. 

"  The  distinction  between  judgments  void  and  those  erroneous,  and  there- 
fore voidable,  is  recognized  in  all  the  ca.ses  to  which  we  are  referred.  All 
the  eminent  jurists  who  delivered  opinions  in  the  celebrated  case  of  Jolin 
v.  N.  Yates,  in  its  various  phases  and  stages  (iis  rep<^>rted  4  J.  R.,  818;  5  id., 
281 ;  6  id.,  337,  and  9  id.,  394),  affirmed  {he  doctrine,  although  they  differed 
widely  in  their  judgments  in  that  particular  case;  but  their  differences,  as 
well  as  the  ultimate  decision  of  the  matter,  turned  upon  the  peculiiU"  cir- 
cumstances of  the  case,  and  do  not  bear,  except  very  remotely,  upon  the 
question  now  under  consideration, 

"  Mr.  Hill,  in  his  valuable  note  to  the  McLe.od  Case,  3  Hill,  647.  has  care- 
fully, and  with  his  usual  accuracy,  epitomized  the  law  relating  to  the  writ 
of  lutbeas  corpus,  and  pointed  out  the  departures,  under  the  statutes  of  this 
state,  from  the  common  law,  and  the  propt>sitions  enunciated  by  him  are 
well  sustained  by  the  authorities  cited  in  the  note,  and,  so  far  as  applicable 
to  the  case  in  hand,  may  be  briefly  summed  up.  As  well  at  common  law 
as  under  the  statutes  of  this  state,  if  the  party  is  detained  on  process,  the 


LOWERY  V.  HOWARD. 


287 


existence  and  validity  of  the  process  are  the  only  facts  in  issue,  and  the 
right  to  in(|uire  into  the  validity  of  the  process  is  co-extensive  with  that 
which  is  allowed  in  an  action  for  false  imprisonment.  If  the  process  is  valid 
on  its  face,  it  will  be  deemed  prima  facie  legal,  and  the  prisoner  must  as- 
sume the  burthen  of  impeaching  ita  validity  by  showing  a  want  of  juris- 
diction. Error,  irregularity,  or  want  of  form,  is  no  objection ;  nor  is  any 
defect  which  may  bo  amended  or  remedied  by  the  court  from  which  it  is- 
sues. If  there  wa.s  no  legal  power  to  render  the  judgment  or  decree,  or 
issue  the  process,  tiiorc;  was  no  competent  court,  and,  consequently,  no  judg- 
ment or  process.    All  is  coram  non  judice  and  void." 

In  Ece  parte  Fink,  113  U.  S.,  713,  the  petiticmer  was  held  under  an  order  of 
the  circuit  court  for  the  southern  district  of  New  York,  committing  him  for 
contempt.  In  its  decisi<m  the  supreme  court,  admitting  the  general  rule  that 
the  exercise  of  the  power  of  punishment  for  contempt  of  their  orders,  by  court;* 
of  geneial  jurisdiction,  is  nt)t  subject  to  review  by  that  court,  and  that  no 
relief  against  such  orders  can  be  granted,  when  the  court  has  autliority  to 
make  tiiem,  exce];t  through  the  coint  making  the  order,  or  possibly  Vjy  the 
exercise  of  the  j  ardoning  power,  holds,  that  when  a  court  of  the  United 
States,  bj'  its  ])r()(!e.ss  of  contempt,  undertakes  to  punish  a  man  for  refusing 
to  comply  with  an  order  which  that  court  had  no  authority  to  make,  the 
order  i'self,  being  without  jurisdiction,  is  void,  and  the  order  punishing  for 
the  contemjit  is  eciuully  void:  and  that  wlx'n  the  pmcoeding  for  contempt 
ia  such  a  case  results  in  imprisonment,  it  will,  by  its  writ  of  hnlwas  corpv.% 
discharge  the  prisoner. 

From  .an  examination  of  the  foregoing  and  other  leading  cases  on  the 
subject  of  haheati  corpim,  it  will  l)e  seen  that  no  court  has  undertaken  to 
formulate  rules  applicable  to  all  (juesticms  likely  to  arise  on  the  subject. 
Indeed,  it  might  be  impracticaV)le  were  it  possible  to  do  so.  From  a  close 
analysis  of  the  jninciple  underlying  the  doctrine  of  habeas  cori)itn,  both  at 
common  law  and  under  stfitutes  which  have  undertaken  to  change  or 
modify  the  common  law  rule  on  the  subject,  it  would  seem  that  the  follow- 
ing rules  may  be  deduced  from  tlie  authorities : 

First.  When  the  petitioner  presents  a  case  in  which  it  appears  that  he  is 
restrained  of  his  liberty  uu'ier  a  law  which  is  void,  he  is  entitled  to  his  writ, 
whether  committcil  by  orier  of  a  superior  or  inferior  court,  and  whether 
upon  an  order  of  connnitment  or  process  upon  a  final  judgment. 

Second.  When  the  petitioner  shows  that  he  is  restrained  of  his  liberty 
luider  process  of  >'  ;:ourt  not  having  jurisdicti<m  to  make  the  order  or  render 
the  judgment  upon  which  the  pr<x?ess  issued,  he  is  entitled  to  his  writ, 
whether  the  court  making  such  order  or  rendering  the  judgment  is  one  of 
superior  or  inferior  jurisdiction. 

Third.  Wiien  it  appears  from  the  petition  that  the  petitioner  Is  restrained 
of  his  liberty  by  virtue  of  final  judgment  or  decree  of  any  competent  court 
of  civil  or  criminal  jtirisdiction,  or  of  any  execution  issued  upon  such  judg- 
ment or  decree  regular  on  its  face,  he  may  nevertheless  be  discharged  if  it 
be  ma^le  to  appear  that  the  court  rendering  such  judgment  or  decree  ex- 
ceeded its  authority,  and  that  upon  writ  of  error  or  appeal  prosecuted  to 
reverse  such  judgment  or  decree,  there  would  be  nothing  left  for  the 
court  to  do,  after  such  reversal,  but  to  order  the  discharge  of  the  petitioner ; 


r  ^ 


288 


AMERICAN  CRIMINAL  REPORTS. 


k 

IP 


that  is,  when  the  court  rendering  such  judgment  or  decree  had  exhausted 
its  authority,  and  notliing  further  could  be  done  except  to  discharge  tlio  ju'ti- 
tioner  in  obedience  to  tlie  order  of  tlie  court  reversing  and  remanding  tlie 
case. 

Fourth.  Wlicn  it  is  made  to  appear  tliat  tlie  jjetitioner  is  illegally  restrained 
of  his  liberty  for  any  cause  as  hereinabove  enumerated,  he  is  entitled  to  his 
writ,  whether  the  order  of  commitment  issues  from  an  inferior  or  superior 
court,  wlien  it  is  mad*;  to  appear  that  the  proceedings  are  absolutely  void : 
as,  for  instance,  when  a  party  is  indicted  by  a  grand  jury  wliich  the  court 
had  no  power  to  convene,  arraigned,  tried  and  convicted  in  a  court  which  had 
no  jurisdiction  of  the  offense,  or  which  had  no  power  to  render  the  judgment 
upon  which  the  process  of  commitment  is  based ;  and  this  is  so  althougli 
the  case  has  Iseen  passed  upon  by  the  court  of  last  resort,  unless  the  jurisdic- 
tional question  complained  of  was  also  jiassed  upon  and  decided  adversely  by 
that  court.  It  may  be  objected  that  tliis  is  stretching  tiie  ])rinciple  to  an 
extent  beyond  that  of  any  adjudicated  case.  But  it  is  not  so.  It  is  sus- 
tained in  principle,  and  supported  by  authority  from  the  decision  in  liuHhcU'fi 
Case,  decided  in  1070.  down  to  the  ]tresent  time.  The  decision  of  Chief  Justice 
Vaughan,  in  BushelVs  Vane,  cited  in  Ex  parte  SielnM,  supra,  and  which  Mr. 
Justice  Bradley  siiys  has  rarely  been  excelled  for  judicial  elixiuence,  although 
old  and  often  cited,  it  may  lje  permissible  to  (juote  a  few  paragraphs  there- 
from. The  learned  cliief  justice,  answering  the  objectinn  urged,  that  the 
court  of  sessions  in  London  was  not  to  l)e  looked  on  as  an  inferior  court,  and 
that  having  heard  the  evidence  it  must  be  accredited  that  the  evidence  given 
to  the  jury  of  the  f.act  was  clear  and  not  to  be  doubted,  among  other  things 
said :  "  But  if  any  man  thinks  that  a  person  concerned  in  interest,  by  the  judg- 
ment, action  or  authority  exercised  upon  his  person  or  fortunes  by  a  judge. 
must  submit  in  all,  or  any  of  these,  to  th«!  implied  discretion  and  unerring- 
ness  of  his  judge,  without  seeking  such  redress  as  the  law  allows  him,  it  is 
a  persuasion  against  couunon  reason,  the  receiveil  law,  and  usage?  both  of 
this  kingdom  and  all  others.  If  a  court,  inferior  or  superior,  hath  given  a 
false  or  erroneous  judgment,  is  anything  more  frcfpient  tliaiito  reverse  such 
judgments,  by  writs  of  false  judgment  of  error,  or  ai)peals.  according  to 
the  course  of  the  kingdom?  If  they  have  given  corrupt  or  dishonest  judg- 
ments, they  have  in  all  ages  been  complained  of  to  the  king  in  the  star 
chamber  or  to  the  parliament." 

After  reviewing  the  cases  in  the  ancient  and  modern  books,  and  the  prece- 
dents furnished  by  the  court  of  common  ple.'us  wherein  perscms  imprisoned 
by  other  courts  were  discharged  ui»on  the  sufHciency  of  the  return  only,  he 
says: 

"Hence,  it  follows,  though  proceedings  in  other  courts  against  a  person 
privileged  in  Banco  might  be  superseded,  yet  it  was  when  the  matter  jno- 
ceeded  upon  in  such  courts  might  as  well  be  prosecuted  in  the  common 
bench ;  but  if  a  privileged  person,  in  Banco,  were  sued  in  the  ecclesiastical 
courts,  or  before  the  high  commission,  or  constable  and  marshal,  for  things 
whereof  the  common  pleas  had  no  cognizance,  they  could  not  sui)ersede  that 
proceeding  by  privilege.  And  this  was  the  ancient  reason  and  course  of 
privilege. 

"  1.  Another  way  of  privilege,  by  reason  of  suit  dep  nding  in  a  superior 


LOWERY  V.  HOWARD. 


289 


court,  is,  when  a  person  impleading  or  impleaded,  as  in  the  couimon  bench, 
is  after  arrested  in  a  civil  action  or  plaint  in  Londo.\  or  elHewhere,  and  by 
habeas  corpus  is  brought  to  the  common  pleas,  anr*  the  arrest  and  cause 
returned ;  if  it  appear  to  the  court  that  the  arrest  In  London  was  after  the 
party  ought  to  have  had  the  privilege  of  the  oummon  pleas,  he  shall  have 
his  privilege  allowed,  and  be  discharged  of  his  arrest,  and  the  party  left  to 
pro8o<'Ute  his  cause  of  action  in  London,  in  tlie  common  pleas,  if  he  will. 

"2.  If  the  cause  of  the  imprisonutent  returned  be  a  lawful  cause,  but 
which  cannot  be  prosecuted  in  tl>e  common  pleas,  as  felony,  treason,  or  some 
cause  wherein  the  high  commission,  admiralty,  or  other  court,  had  power  to 
imprison  lawfully,  then  the  party  imprisoned  which  did  implead,  or  was 
impleaded  in  the  common  bencli  before  such  imprisonment,  shall  not  be 
allowed  privilege,  but  ouglit  to  be  remanded. 

"  3.  The  third  way  is,  when  a  man  is  brought  by  habeas  corpus  to  the 
court,  and,  upon  return  of  it,  it  appears  to  the  court  that  he  waa  against  law 
imprisoned  and  detained,  though  there  be  no  cause  of  privilege  for  him  in 
this  court,  he  shall  never  be,  by  the  act  of  the  court,  remanded  to  his  unlaw- 
ful imprisonment,  for  then  the  court  should  do  an  act  of  injustice  in  impris- 
oning him,  de  novo,  against  the  law,  whereas  the  great  charter  is  '  quod 
iiulliis  liber  homo  imprinonetur  nisi  per  legem  terrce.'  This  is  the  present 
case,  and  this  was  the  case  upon  all  the  precedents  proiluced,  and  many  be- 
fore that  might  be  produced,  wlicre,  upon  halwas  coipiis,  many  have  been 
dischiirged  and  bailed,  though  tJnn-e  was  no  cause  of  privilege  in  the  case. 

"  This  apiwars  plainly  by  many  old  books,  if  the  reason  of  them  he  riglitly 
taken.  For  insuHicient  causes  are  a-s  no  causes  returned ;  and  to  send  a  man 
back  to  prison  for  no  cause  returned,  seems  unworthy  of  a  court." 

Let  it  not  bo  assumed  that  we  propose  to  clothe  every  judge  with  tlie 
power  to  review  tiie  proceedings  and  judgments  of  courts  of  concurrent  or 
superior  jurisdiction,  or  tliat  he  may  by  means  of  this  writ  unbar  tlie  pon- 
derous gates  of  the  state's  prison  and  release  all  felons  from  undergoing 
merited  punishments.  Not  at  all.  The  science  of  law  is  not  like  the  science 
of  numbers  so  that  it  is  impossible  to  prove  a  pvojMisition  to  a  matiiomatical 
certainty.  We  can  only  ajipeal  to  the  reason  and  understaniling  in  order 
to  convince  the  judgment  that  a  certain  legal  projjosition  is  consistent  with 
(••jumion  sense  princi[)les,  and  to  sliow,  if  such  be  the  fact,  that  such  propo- 
sition is  sustained  by  the  authority  of  adjudicated  cases.  Tlie  proposition 
for  which  we  contend  is  simple  enough  to  our  own  mind,  but  we  may  not 
1)0  able  to  convey  our  meaning  with  such  accuracy  and  precision  as  to  make 
it  wholly  clear  and  intelligible  to  others.  The  in'oposition  is  this:  That  the 
jurisdictional  question  underlying  the  power  of  the  court  to  make  the  order 
or  render  the  judgment  or  decree  which  forms  the  basis  of  the  restraint  is 
open  to  review  upon  eiTor,  a])peal  or  by  hiibeus  corpus.  That  every  court 
clothed  with  jurisdiction  to  award  the  writ  may  investigate  this  jurisdic- 
tional question.  But  when  it  becomes  necessary  to  look  behind  the  return 
in  order  to  ascertain  and  determine  the  jurisdictional  fact  from  the  rec- 
ord, the  writ  would  be  unavailing  unless  issued  by  a  court  of  appellate 
jurisdiction  having  power,  by  certiorari  or  otherwise,  to  cause  the  whole 
recoi'.l  in  the  proceedings  to  be  brought  before  it.  The  writ  should  not  be 
converted  into  a  writ  of  error  to  revise  a  judgment  which  is  merely  errone- 
VoL.  V  — 19 


5«' 


11 


290 


AMERICAN  CRIMINAL  REPORTS. 


f- .; 


OU8;  but  the  fact  that  a  writ  of  error  would  lie  is  no  inmiperahle  ohjeotion 
to  its  use  when  it  is  made  evident  to  the  court  that  nothing  further  oniild 
be  done  after  reversal  on  error  than  to  order  the  discharge  of  the  prisoner. 
If  the  case  be  of  such  nature  that  the  prisoner  ought  to  be  re-indictcti,  re- 
tried or  again  sentenced,  then  the  judgment  of  commitment  is  erronoous 
only,  and  while  the  court  ought  to  discharge  the  prisoner  from  the  illc;,'al 
restraint,  it  would  be  its  imperative  duty  to  remand  hira  into  the  hands  of 
the  proper  custodian  to  be  dealt  with  according  to  law.    This  was  the  course 
pursued  by  the  court  in  Oarvey'a  Ca/te,  7  Colo.,  384  (S.  C,  4  Am.  Cr.  R.,  254). 
In  that  case  the  petitioner  was  indicted  for  murder,  tried,  convicted  and 
sentenced  to  the  penitentiary  for  life.    A  writ  of  error  to  the  judgment  was 
prosecuted  to  the  supreme  court,  which  court  reversed  the  judgment  and 
remanded  the  cause  for  the  reason  that,  after  the  commission  of  the  ofT<>nsp, 
the  legislature  had  so  amended  the  statute  concerning  miu'dcr  as  to  iilter 
the  situation  of  the  prisoner  to  his  disadvantage  without  a  saving  clause  as 
to  the  repealed  provision,  thus  making  the  law  e,v  post  fncto  as  to  the  case  of 
the  petitioner.    The  court  further  held,  that  the  act  amending  the  Criminal 
Code,  which  went  into  effect  after  the  tiling  of  the  indictnieiit,  did  not 
wholly  repeal  or  annul  the  indictment;  that  the  law  of  homiciile  was  not 
repealed ;  that  while  two  sections  concerning  the  punishment  of  murder 
were  repealed,  no  change  was  made  in  the  provisions  relating  to  man- 
slaughter ;  and  that  as  the  indictment  contained  all  the  essential  elements 
of  a  count  for  manslaughter,  the  prisoner  might  he  tried  for  tliat  offense. 
After  the  case  was  remanded  for  trial,  and,  up«m  return  of  the  reconl  into 
the  district  court,  the  petitioner  interposed  a  motion  to  iinasli  the  indict- 
ment upon  the  ground  that  it  was  insufticient  in  law  as  appeared  from  the 
judgment  of  reversal.     The  district  court  denied  the  motion  to  »iuasli,  and 
gave  judgment  on  the  former  verdict,  without  any  further  trial  of  tlie 
prisoner,  and  upon  this  judgment  he  was  committed  to  the  penitentiary  for 
a  term  of  years.     The  supreme  court  on  the /in^eas  corjx^s  iiroceeding  held 
that  the  order  of  the  district  court  in  pronouncing  judgment  upon  the  ver- 
dict without  submitting  the  case  to  another  jury  was  absolutely  void,  and 
it  discharged  the   prisoner  from    imprisonment  in  the  penitent  ary,  and 
ordered  that  he  be  remanded  to  the  custody  of  the  sheriff  of  the  proper 
county,  aa  it  appeared  to  the  court  that  he  stood  legally  indicted  of  a  felony. 
Under  the  habeas  corpus  act  of  that  state,  it  is  providetl,  among  other 
things,  that  if  it  appear  that  the  prisoner  is  in  custody  by  virtue  of  process 
from  any  court  legally  constituted,  he  can  lye  dischargwl  only  for  some  of 
the  following  causes:  "  First,  where  the  court  has  exceeded  the  limit  of  its 
jurisdiction,  either  as  to  the  matter,  place,  scene  or  person."  This  case  would 
serve  to  illustrate  our  position  were  it  not  for  the  statutory  provision  above 
quoted.     The  court  was  probably  right  in  giving  immediate  relief,  tis  the 
error  was  apparent  and  the  imprisonment  unjust  (see  E.r  parte  Sichold, 
supra);  but  we  challenge  the  soundness  of  the  conclusion  reached,  "  that  the 
judgment  of  the  district  court  is  not  merely  erroneous  but  void,  and  for  the 
rea.son,  and  be(^ause  of  the  non-observance  of  the  forms  of  law  in  the  pro- 
ceedings of  the  district  court,  the  pri?aner  must  be  discharged  from  the 
penitentiary."'    The  judgment  of  ill*   district  court,  within  the  meaning  of 
the  statute  above  quoted,  by  aforcal  construction,  might  he  said  to  cxceeil 


LOWERY  V.  HOWARD. 


201 


the  limit  of  its  jurisdiction,  but  this  was  a  mere  error  of  judgmunt.    It  is 
not  iil<e  the  caae  of  People  ex  rel.  v.  WUitHoii,  74  III..  20,  wliich  is  quoted  in 
support  of  the  decision,  because,  in  that  cose,  the  learne<l  juilf^u  who  de< 
Uvc'i'od  the  opinion  of  the  court,  Mr.  Justice  MoAllister,  baued  iiia  ducisiun  u[>ou 
the  Hini|)le  and  sole  ground  tliat  tliu  cuunty  court  had  no  power  or  jurisdiv- 
tion,  at  a  8ul)se<|uent  term,  to  enter  an  order  wh?<c  pro  tunc  to  the  ofTt'ct  that 
defendant  be  imprisoned  in  tlie  county  jail  for  the  term  of  ton  days  and 
fined  in  the  sum  of  f  20  on  each  of  the  forty  counts  of  which  the  jury  in 
their  verdict  foiuid  him  guilty.    In  that  case  as  in  the  case  of  Ex  parte 
Lange,  mtjyra,  the  court  in  rendering  its  first  judgment  exlmusteil  its  au- 
thority, and  nothing  else  could  be  done,  had  the  judgjncnt  in  either  case  been 
reversed  on  error,  than  to  order  the  dis(liiir};i'  of  the  prisoner.     If,  for  ex- 
ample, a  party  is  indicted  of  felony  and  he  waives  the  right  of  trial  by  jury 
and  submits  his  case  to  be  tried  by  the  court,  which,  according  to  tlie  de- 
cisitmH  in  some  of  the  states  ho  cannot  do,  would  he,  after  conviction  and 
sentence  under  such  circumstances,  Iw  entitltHl  to  a  writ  of  habeas  corpus 
in  order  to  be  discharged  from  the  alleged  illegal  restraint?    Certainly  not. 
The  court  in  the  case  putwouUl  l)e  diargeablo  merely  with  an  error  of  judg- 
ment, for  which  error  the  cause  ought  to  be  reversed  and  remanded  in 
order  that  the  in'lsoner  might  submit  his  case  to  a  jury  to  be  tried  according 
to  established  forms  of  law.    The  court  exceeded  its  authority  in  trying  the 
case  without  a  jury,  but  it  had  jurisdiction  of  the  otfense  and  of  tho  offender, 
and  such  excess  of  authority  or  of  jurisdiction,  if  we  may  so  term  it,  accord- 
ing to  our  notion,  within  the  meaning  even  of  the  statutory  provision  above 
iiuoted,  does  not  apply  to  courts  of  general  common  law  jurisdiction,  hav- 
ing cognizance  of  such  cases,  but  only  to  courts  of  inferior  and  Umitud 
jurisdiction.    For  example,  a  justice  of  the  peacse,  upon  complaint  made  of 
felony,  may  hear  evidence,  and,  ui)on  probable  cause  appearing,  commit  the 
felon  to  the  conmion  jail  to  await  tlie  action  of  the  grand  jury ;  but  if,  in- 
stead of  in(|uiring  into  the  nature  of  the  offense  for  the  {Hirpose  of  commit- 
ting or  discharging  the  accused,  he  assumes  jurisdiction  of  the  offense, 
convicts  the  accused  of  tho  felony  and  commits  him  to  the  state's  prison  for 
a  term  of  years,  be  would  exceed  his  jurisdiction,  and  the  whole  proceed- 
ing would  be  absolutely  void.    Why  void?    Because  the  law  which  cre- 
ates the  office  of  justice  of  the  peace  prescribes  and  limits  his  jurisdiction. 
In  BushclVn  Case,  the  court  ailjudged  that  the  jury  who  a«quitted  Penn  and 
his  associates,  in  the  exercise  of  its  prerogative,  upon  the  evidence,  could 
not  have  been  guilty  of  contempt  of  court  in  so  doing,  and  therefore,  a-sthey 
h.id  committed  no  offense  against  the  court  or  against  the  law,  they  were 
entitled  to  be  discharged  absolutely  from  the  illegal  restraint.    So,  also,  in 
cases  falling  within  the  principle  decided  in  Ex  parte  Lanye,  napra,  ami 
other  cases  of  similar  import,  the  prisoner  is  discharged  because  tho  court 
which  ren<lered  the  judgment  of  commitment  had  exhausted  its  power  in  the 
premises.    A  similar  rule  applies  in  those  cases  which  fall  within  the  prin- 
ciple announced  in  Ex  parte  Yo  rbrough  and  Broum  v.  Duff  us,  supra,  because, 
if  the  law  which  defines  the  olTense  and  prescribes  its  punishment  is  void, 
the  prisoner  is  held  without  warrant  of  law  and  has  done  notlung  for  which 
he  shouUl  be  called  to  answer  for  before  the. courts  of  his  c^ountiy. 
Owing  to  the  length  of  this  note,  we  will  not  discuss  that  class  of  cases 


.'i  . 


! 

i: 


^ 


l*P'i'V«t'?T-  ■■■. 


292 


AMERICAN  CRIMINAL  REPORTS. 


where  it  appears  from  the  petition  or  from  the  return  to  the  writ  that  tl\c 
petitioner  is  restrained  of  his  liberty  by  a  private  person  or  under  void 
process,  or  under  process  issued  upon  an  order  or  judgment  made  by  a  court 
without  jurisdiction  of  the  person,  tlie  ofifense  or  tlie  subjoct-uiatter,  as  it  is 
perceived  that  no  particular  difiiL-ulty  can  arise  in  cases  falling  under  tliuse 
heads. 


Merger  v.  The  Statb. 

(17  Texas  Ct.  App.,  453.) 

Incest  :  Consent  of  female  —  Evidence  —  Testimony  of  accomplice. 

1.  Incest  —  Consent. —  The  question  of  consent  of  the  female  does  not 

necessarily  enter  into  the  composition  of  tlio  offense  of  incest,  ainl  ;i 
prosecution  for  that  oflFense  may  be  maintained  upon  proof  that  c-itali- 
lishes  eitlier  her  consent  or  non-consent  to  tlie  carnal  intercourse. 

2.  Accomplice  testimony  — Evidkxce  —  Cii.vuok  of  tiik  couut.— If  the 

female  with  whom  the  incestuous  intercourse  is  alle:;e  1  to  have  been 
had  is  shown  to  have  knowin.<;;lj',  voluntarily,  and  with  tlie  same  in- 
tent which  actuated  the  accused,  imited  with  him  in  tlie  cominissiini 
of  the  offense,  slie  is  an  accomplice  in  tlie  crime,  and  her  uncorrob- 
orated testimony  is  insufhcient  to  support  a  conviction  of  the  accused. 
On  the  other  hand,  if  the  evidence  sliows  tliat,  in  the  conuni^sion  of  tlie 
incestuous  act,  she  was  the  victim  of  force,  tbrcats,  fraud  or  iiinluc 
fnfluence,  so  that  she  did  not  act  voluntarily,  and  did  not  join  in  the 
commission  of  the  act  with  the  same  intent  that  actuated  the  accused, 
then  she  is  not  an  ac(;oniiilic(»,  and  a  conviction  might  stand  even  upon 
her  uncorroborated  testimony. 

3.  PuosEClTTiNO  WITNESS  AS  AcroMiT-iCE  —  EviDKNCE.— In  this  case  it  is 

iield  that  the  testimony  of  the  accomplice  was  sufHciently  corroborati'il 
by  the  other  evidence  to  justify  the  verdict. 

4.  AliOUMEXT  OF  COUNSICL. —  The  remarks  (if  the  prosecuting  attorney  were 

not  beyond  the  scope  of  legitimate  argument. 


A]>|)eal  front  the  District  Court  of   Llano. 
Hon.  J.  C.  Townes. 


Tried  before 


W.  T.  Dalrymple.,  for  the  appellant. 
J.  11.  BurtSf  assistant  attoruey-yeneral,  for  the  state. 

Wir.Lsox,  J.  I.  This  being  a  conviction  for  the  crime  of  in- 
cest, it  is  contended  that  if  the  evidence  shows  that  the  defend- 
ant is  guilty  in  the  same  transaction  of  the  higher  and  dis- 
tinct crime  of  rape,  it  is  an  illegal  conviction,  and  must  bo  set 
aside. 


MERCER  V.  THE  STATE. 


293 


It  is  ingeniously  and  ably  argued  by  counsel  for  defendant, 
that  our  statute  defining  the  offense  of  incest,  in  using  the 
words  "  carnally  known  each  other,"  presupposes  the  consent 
of  both  parties,  and  makes  it  necessary  that  they  should 
mutually  carnally  know  each  otlior;  that  the  offense  will  not 
bo  complete  where  the  man  only  acts  voluntarily  in  the  illicit 
connection;  but  to  make  the  offense  comi)lete,  both  the  man 
and  the  woman  must  have  the  carnal  knowledge  with  each 
other  mentally  as  well  as  l)o(lily ;  that  a  raj)e  of  tlie  Avoman  by 
the  man  excludes  the  crime  of  incest,  and  that,  eo  convurso, 
where  incest  is,  raj)e  cannot  be.  Counsel  supports  this  reason- 
ing by  respectable  autliority.  People  v.  Ilarriwn,  1  Parker's 
Crim.Rep.(N.  Y.),  344;  Nolle  v.  The  State,  22  Ohio,  43;  jS"orth- 
western  lieporter,  April  3,  1880,  p.  442. 

Uut,  in  our  opinion,  the  great  weight  of  reason  and  of  author- 
ity is  against  the  doctrine  announced  in  the  authorities  cited  and 
contended  for  by  counsel  for  defendant.  Mr.  Bishop  says,  in 
treating  of  this  class  of  offenses:  "  As  every  offense  to  be  pun- 
ishable must  be  voluntary,  so  in  particular  must  be  adultery. 
But  alike  in  adultery  and,  it  is  believed,  in  fornication  and  in  in- 
cest, where  the  crime  consists  in  one's  unlawful  carnal  knowl- 
edge of  another,  it  is  immaterial  whether  the  other  participated 
under  circumstances  to  incur  guilt  or  not, —  just  as  sodomy  may 
be  committed  either  with  a  responsible  human  being,  or  an  irre- 
sponsible one,  or  a  beast.  Therefore,  the  same  act  of  penetiat- 
ing  a  woman  who,  for  e.xan.ple,  is  too  drunk  to  give  consent, 
may  be  ])rosecuted  either  as  a  rape  or  as  adultery,  at  the  elec- 
tion of  the  prosecuting  power.  There  are  cases  which  deny 
this,  and  hold  that  adultery,  fornication  and  incest  can  be  com- 
mitted only  with  consenting  jiersons,  and  what  is  rape  cannot 
be  one  of  the  others.  But  they  are  believed  to  proceed  pai'tly, 
and  perhaps  entirely,  on  special  terms  of  statutes;  certainly, 
in  principle,  they  can  have  no  other  just  foundation.'"  Bish. 
on  Stat.  Crimes,  §  G60. 

In  the  case  of  The  People  v.  Rouse,  2  ilich.  N.  P.,  200,  it  was 
held  upon  a  trial  for  incest,  where  the  proof  tended  to  show 
that  the  intercourse  was  forcible  and  against  the  will  of  the 
female, —  the  complaining  witness, —  with  whom  the  intercourse 
was  had,  that  the  accused  might  be  convicted  for  incest  even 
if  the  jury  should  find  that  the  force  used  was  such  as,  under 


|;  -f 

■    ■    ;         -^y';^ 

;*■'! 

f.;  ■     ■               ' 

p^ 

p' 

?'. 

.■ ' .. 

tSBBSSm^,. 


294 


AMERICAN  CRIMINAL  REPORTS. 


the  circumstances,  to  amount  to  rape.  In  Eaiford  v.  The 
State,  68  Ga.,  672,  it  was  held  that,  in  the  perpetration  of  tlie 
crime  of  incest,  there  may  be  a  certain  force  or  power  exerted, 
resulting  from  the  ago,  relationship,  or  circumstances  of  the 
parties,  which  nevertheless  may  not  amount  to  the  violence 
necessary  to  constitute  rape.  In  Alonso  v.  The  State,  15  Tex. 
(/t.  App.,  378,  the  question  now  before  us  was  discussed  and 
the  authorities  reviewed  at  some  length,  the  conclusion  arrived 
at  and  announced  being  adverse  to  the  view  contended  for  by 
defendant's  counsel  in  this  case.  If  our  view  of  the  law  as 
enunciated  in  the  last  cited  case  be  correct,  and  we  believe  it 
is,  then  that  case  is  decisive  of  the  question  we  have  been  dis- 
cussing, and  accordingly  we  hold  that,  notwithstanding  the 
evidence  in  this  case  may  show  that  defendant  committed  rape 
on  his  daughter,  he  may  be  prosecuted  and  convicted  for  in- 
cest; and  that  to  make  him  guilty  of  incest,  it  was  not  neces- 
sary that  his  daughter  should  have  consented  to  his  carnal 
knowledge  of  her.  She  might  be  entirely  innocent  of  any 
crime,  and  yet  he  might  be  guilty  of  rape  or  incest,  or  both,  by 
having  carnal  knowledge  of  her.  We  can  see  nothing  in  our 
statute  defining  the  crimes  of  rape  and  of  incest  which  militates 
against  this  view. 

11.  It  was  entirely  upon  the  testimony  of  the  defendant's 
daughter,  with  whom  the  incestuous  intercourse  is  alleged  to 
have  occurred,  that  this  conviction  was  obtained.  It  is  con- 
tended by  defendant's  counsel,  that  she  was  an  accomplice  in 
the  offense,  and  that  her  testimony  being  uncorroborated  in  the 
manner  required  by  law,  the  conviction  is  not  sustained  by  suf- 
ficient evidence.  If  the  witness,  knowingly,  voluntarily,  and 
with  the  same  intent  which  actuated  the  defendant,  united  with 
him  in  the  commission  of  the  crime  charijed  ay-ainst  him,  she 
was  an  accomplice,  and  her  uncorroborated  testimony  cannot 
support  the  conviction.  Whart.  Grim.  Ev.,  §  440;  Frerinan.  v. 
The  State,  11  Tex.  Gt.  App.,  92.  But  if,  in  the  commission  of 
the  incestuous  act,  she  was  the  victim  of  force,  threats,  fraud 
or  undue  influence,  so  that  she  did  not  act  voluntarily,  and  did 
not  join  in  the  commission  of  the  act  with  the  same  intent 
which  actuated  the  defendant,  then  she  would  not  be  an  accom- 
plice, and  a  conviction  would  stand,  even  on  lier  uncorrob 
orated  testimony.     Watson  v.  The  State,  9  Tex.  Ct.  App.,  237 : 


MEBCER  V.  THE  STATE. 


295 


Whart.  Crim.  Ev.,  §  440.  In  his  charge  to  the  jury  the  learned 
judge  very  fully  and  correctly  instructed  them  upon  the  sub- 
ject of  accomplice  testimony,  and  the  issue  as  to  whether  or 
not  the  prosecuting  witness  was  an  accomplice  was  clearly  and 
correctly  submitted  for  their  determination.  We  think  the 
charge  of  the  court  in  all  respects  was  full,  fair  and  correct, 
and  there  was  no  error  committed  in  refusing  the  several 
special  instructions  requested  by  the  defendant. 

III.  By  far  the  most  embarrassing  question  to  us,  which  is 
presented  in  this  case  for  our  determination,  is  the  sufficiency 
of  the  evidence  to  sustain  the  conviction.  If  the  prosecuting 
witness  was  not  an  accomplice,  then  the  evidence  is  unques- 
tionably sufficient.  If,  on  the  other  hand,  she  was  an  accom- 
plice, her  testimony,  if  not  corroborated  to  the  extent  required 
by  law,  is  insufficient.  The  first  inquiry,  therefore,  is,  does  the 
evidence  warrant  the  conclusion  that  she  was  not  an  accom- 
plice? She,  herself,  testified  very  positively  that  she  did  not 
consent  to  the  incestuous  acts  of  her  father ;  that  she  submitted 
to  them  through  fear  of  him,  under  tJio  influence  of  threats, 
etc.  But  these  general  statements  of  want  of  consent,  force, 
threats,  etc.,  must  be  considered  in  connection  with  lier  other 
testimony,  and  with  all  the  other  evidence  in  tlie  case.  Ac- 
cording to  her  own  testimony,  her  father,  the  defendant,  first 
forced  her  to  submit  to  his  unnatural  desire  when  she  was 
thirteen  years  old,  and  he  continued  to  have  sexual  intercourse 
with  her  from  that  time  until  she  was  twenty  years  old,  about 
once  each  week  when  he  was  at  home,  and  that  the  last  time 
he  had  intercourse  with  her  he  impregnated  lior  with  child. 
During  all  this  time  she  lived  at  home  witli  her  father, 
mother,  sisters  and  brother.  She  was  a  stout,  healthy  girl, 
and  at  the  time  of  testifying  was  a  married  woman  and  a 
mother.  She  never  at  any  time  made  complaint  to  her  mother, 
sisters  or  to  any  one  else  of  the  defendant's  unnatural  treat- 
ment of  her.  It  was  not  until  she  was  about  four  and  a  half 
months  advanced  in  pregnancy  that  she  revealed  the  guilt 
of  her  father,  and  imputed  to  him  the  paternity  of  the  child. 
She  continued  to  reside  at  her  father's,  and  even  resided 
there  with  her  husband  after  she  married,  and  continued  to 
reside  there  up  to  the  time  of  the  trial  of  this  case.  The 
lust  sexual  intercourse  which  her  father  had  with  her  was  June 


f^m 


296 


AMERICAN  CRIMINAL  REPORTS. 


80,  1881.  Her  child  was  born  March  30,  1882.  She  married 
July  26,  1883.  "No  prosecution  upon  this  charge  was  begun 
until  March,  1884.  The  last  sexual  intercourse  on  June  30, 
1881,  she  says,  occurred  about  dark  at  the  cow  pen,  where  she 
had  gone  to  milk  the  cows.  The  cow  pen  was  about  fifty 
yards  from  and  in  sight  of  the  house,  where  her  motlier,  sister 
and  brother  were  at  the  time.  She  made  no  outcry  .mcl  no 
resistance.  To  our  minds  her  testimony,  taken  together,  and 
in  connection  with  the  other  evidence  in  the  case,  is  inconsist- 
ent with  the  conclusion  that  she  was  not  an  accomplice  in  the 
commission  of  the  oflfense.  That  this  long  continued  incestuous 
intercourse,  repeated  almost  weekly  for  a  ]>oriod  of  seven  years, 
almost  in  the  very  presence  of  tlie  other  members  of  the  family, 
could  have  occurred  without  the  consent  of  the  witness,  is 
to  our  minds  unnatural,  unreasonable  and  incredible.  We  can- 
not believe  it,  and  we  do  not  think  the  jury  could  have 
grounded  their  verdict  upon  that  belief. 

Holding  then,  as  we  do,  that  she  was  an  accomplice,  our  next 
inquiry  is,  is  her  testimony  sufficiently  corroborated  by  the 
other  evidence  in  the  case  to  warrant  the  verdict  of  the  jury? 
Whilst  the  corroboration  is  by  no  means  as  satisfactory  to  one 
minds  as  we  would  like  it  to  be  before  affirming  the  conviction, 
still  we  think  it  is  legally  sufficient,  and,  the  jury  being  the 
exclusive  judges  of  the  weight  of  the  evidence  and  the  credi- 
bility of  the  witnesses,  we  would  not  feel  justified  in  disturb- 
ing their  verdict.  The  most  material,  and  to  our  minds  the 
only  sufficient  corroboration  of  her  testimony  is  that  of  her 
sister,  Mrs.  Loftis.  The  prosecuting  witness  testifie<l  that 
when  she  discovered  she  was  pregnant,  she  told  her  mother 
about  it,  and  her  mother  told  the  defendant  that  witness  was 
pregnant  and  that  he  was  the  father  of  the  child ;  that  he  ac- 
knowledged he  was  guilty,  and  got  his  gun  and  said  he  would 
blow  his  brains  out,  and  said  to  the  prosecuting  witness  that 
she  ought  to  be  willing  to  go  to  the  grave  with  him.  Mrs. 
Loftis  testified  that  she  remembered  the  time  when  her  father 
got  his  gun  and  said  he  was  going  to  kill  himself,  and  said  to 
her  sister  she  ought  to  be  willing  to  go  to  the  grave  with  him, 
but  that  she  did  not  hear  their  conversation,  and  did  not  know 
what  they  were  talking  about.  This  evidence,  we  think,  tends 
to  connect  the  defendant  with  the  ofl:'ense,  and  fills  the  meas- 


DICKSON  V.  THE  STATE. 


297 


ure  of  the  law.  Besides  this,  there  is  some  other  corroborat- 
ing evidence,  but  of  so  weak  and  uncertain  a  character  as  to 
be  insufficient,  of  itself,  to  uphold  the  testimony  of  the  accom- 
plice witness. 

IV.  We  do  not  think  the  remarks  of  the  prosecuting  attor- 
ney, in  his  closing  argument  to  the  jury,  which  are  complained 
of  by  the  defendant,  were  beyond  the  scope  of  legitimate  argu- 
ment. It  was  disclosed  by  the  evidence  that  defendant's  wife 
must  have  known  important  facts  bearing  directly  upon  the 
issue  in  the  case,  and  that  she  was  within  easy  reach  of  the 
process  of  the  couru.  She  could  have  explained  fully  the  occur- 
rence testified  .about  by  his  two  daughters  when  he  got  his  gun 
and  said  he  would  blow  his  brains  out.  She  could  have  testi- 
fied, perhajis,  to  n)any  other  facts  which  would  have  shed  light 
upon  this  horrible  transaction.  It  was  not  within  the  power 
of  the  prosecution  to  adduce  her  testimony;  because,  being  the 
defendant's  wife,  she  was  not  permitted  under  the  law  to  tes- 
tify against  him  in  this  case.  lie  alone  could  call  for  her  tes- 
timony, and  compel  its  production.  Her  knowledge  of  the 
facts,  whatever  that  knowledge  might  be,  was  at  his  command  — 
was  within  his  reach, —  and  without  he  produced  it,  or  con- 
sented to  its  production,  it  was  a  sealed  book,  which  no  human 
tribunal  had  the  power  to  open  against  him.  Under  these  cir- 
cumstances we  think  the  prosecuting  attorney  was  justified  in 
the  remarks  complained  of,  and  that  the  court  did  not  err  in  its 
action  in  relation  thereto.  We  have  found  no  error  in  the 
record  ^\  "lich  in  our  opinion  demands,  or  would  justify  us  in 
setting  aside  the  conviction,  and  the  judgment  is  therefore 
affirmed. 

Affirmed. 


Dickson  v.  The  State. 

(20  Florida,  800.) 

Indictment:  Prosecutor  cannot  amend  in  matter  of  substance. 

1.  A  state's  attorney  has  nc  luthority  to  amend  an  indictment  found  l)j'  a 

grand  jury,  by  his  individual  indorsement  thereon,  of  a  date  different 
from  that  found  by  the  gi-and  jury. 

2.  The  defendant  waw  indicted  in  April,  1884.     The  offense  was  charged  to 

have  been  conimitted  in  December,  1884.    The  state's  attorney  indorsed 


298 


AMERICAN  CBIMINAL  REPORTS. 


.  n pon  the  indictment  over  his  signature  these  words:  " The  date  upon 
which  the  state  relies  is  the  10th  day  of  December,  A.  D.  1883,  and 
not  the  10th  day  of  December,  A.  D.  1884."  Held,  that  the  amend- 
ment was  void  and  did  not  change  the  allegation  in  the  indictment  in 
that  respect.  The  time  alleged  is  matter  of  substance,  and  it  being  an 
impossible  day,  the  indictment  was  bad,  and  the  judgment  is  arrested. 

Writ  of  error  to  the  Circuit  Court  for  Madison  County. 

The  "  entry  "  spoken  of  in  the  opinion  as  being  *'  at  the  foot 
of  the  indictment"  is  below  the  signature  of  the  state  attor- 
ney to  the  indictment.  The  other  facts  are  stated  in  the 
opinion. 

J*".  W.  Pope,  for  plaintiff  in  error. 
Attorney-General,  for  the  state. 

Mr.  Justice  Van  Valkenburoh  delivered  the  opinion  of  the 
court : 

In  the  month  of  April,  A.  D.  1884,  Judson  Dickson,  the 
plaintiff  in  error,  was  indicted  by  the  grand  jury  of  Madison 
county  for  breaking  and  entering  a  building  with  intent  to 
commit  a  misdemeanor,  lie  was  tried  and  convicted  of  the 
offense.  His  counsel  then  moved  the  court  to  arrest  the  judg- 
ment upon  several  grounds,  among  which  is  the  following,  viz. : 
Tlie  indictment  laid  the  offense  December  10,  1884,  and  the 
court  erred  in  allowing  the  state's  attorney  to  amend  it  to  De- 
cember 10,  1883. 

The  court  overruled  the  motion,  and  the  counsel  for  the  do 
fendant  excepted  to  the  judgment  and  brings  his  writ  of  error. 

The  indictment  charges  that  "  Judson  Dickson,  late  of  said 
county,  laborer,  on  the  10th  day  of  December,  A,  D.  1884. 
with  force  and  arms,"  etc.  The  remainder  of  the  indict iiiont 
is  in  good  form.  At  the  foot  of  the  indictment  ap[)eurs  tlie 
following  entry  in  the  I'ecord : 

"The  date  upon  which  the  state  relics  is  the  10th  day  of  De- 
cember, A.  D.  18S3,  and  not  the  10th  day  of  December,  A.  D. 
1H84.  B.  B.  Blackwell, 

"  State's  Attorney." 

It  nowhere  appears  in  the  record  that  any  motion  was  made 
to  amend  the  indictment,  or  that  any  order  to  that  effect  was 
made  by  the  court.  The  indorsement  seems  to  have  been  made 
by  the  state's  attorney  without  authority,  and  can  be  consid- 


COMMONWEALTH  v.  MILLER. 


299 


ered  in  no  wise  the  act  of  the  grand  jury.  It  was  not  done  on 
the  application  of  the  accused,  as  provided  for  in  chapter  1107, 
Laws  1860.  The  indictment  was  found  in  April,  1884,  and 
charges  the  offense  to  have  been  committed  in  December,  1884, 
more  than  seven  months  subsequent  to  the  action  of  the  grand 
jury  —  an  impossible  date.  We  cannot  see  that  the  state's  at- 
torney, of  his  own  free  will,  has  any  authority  to  amend  in 
this  way  an  indictment  duly  found  by  a  grand  jury.  The  only 
authority  for  such  a  proceeding  is  found  in  chapter  1107  of  the 
laws  above  cited,  and  that  law  does  not  cover  an  amendment 
of  this  character.  /Serpentine  v.  State,  1  How.  (Miss.),  256; 
Drummond  v.  State,  4  Texas  App.,  150. 

The  motion  in  arrest  of  judgment  should  have  been  granted. 
The  judgment  is  reversed  and  the  defendant  will  be  discharged 
from  confinement  under  his  conviction  in  this  case. 

Note. — An  information  is  fatally  defective  which  omits  to  allege  that 
the  offense  was  committed  anterior  to  the  day  of  the  tiling  thereof,  when 
the  statute  requires  that  the  time  of  the  commission  of  the  offense  should 
be  stated.  Williams  v.  The  State.  12  Texas  Ct.  App.,  226;  S.  C,  4  Am.  Cr. 
K,  292,  and  note. 


COMMONAVEALTH    V.  MiLLEK   ET  AL. 

(107  Pa.  St.,  276.) 

Indictment  :  Duplicity. 

1.  Two   OR  MORE  DISTINCT   ACTS  CONNECTED   WITH   SAME   TRANSACTION. — 

Where  a  statute  makes  indictable  two  or  more  distinct  acts  connected 
with  the  same  transaction,  each  of  which  may  be  considered  as  repre- 
senting a  phase  of  the  same  event,  they  may  be  coui)led  in  one  count. 

2.  Foucim.E  ENTRY  AND  DETAINER.— A.  and  B.  were  indicted  for  forcible 

entry  and  detainer,  the  indictment  containing  but  one  count.  Before 
plea  filed,  their  counsel  moved  to  quash  the  writ,  which  the  court  re- 
fused tt)  do.  The  jury  returned  a  verdict  of  not  guilty,  but  that  the 
defendants  pay  the  costs.  Defendants  then  moved  in  arrest  of  judg- 
ment, because  the  indictment  was  void  for  duplicity.  TJie  court  sus- 
tained the  motion  and  arrested  the  judgment.  Held,  eiTor ;  that  the 
indictment  was  good,  and  judgment  or  sentence  should  have  been 
entered  thereon. 


1! 


Before  Mercur,  C.  J.,  Gordon,  Paxson,  Trunkey,  Sterrett, 
Green  and  Clark,  JJ. 


■■m 


300 


AMERICAN  CRIMINAL  REPORTS. 


Error  to  the  Court  of  Quarter  Sessions  of  "Westmoreland 
County. 

This  was  an  indictment  against  Alexander  and  James  Miller 
for  forcible  entry  and  detainer. 

The  indictment  was  in  one  count,  and  before  plea  entered 
or  jury  sworn  defendants'  counsel  moved  to  quash,  on  the 
ground  that  "the  crimes  of  forcible  entry  and  forcible  detainer 
are  distinct  and  separate  offenses  under  the  t'riminal  Code,  and 
different  in  the  penalties  attached,  and  they  cannot  be  joined 
in  the  same  count  in  the  indictment,  as  has  been  done  in  this 
case."  This  motion  was  overruled  by  the  court,  and  the  de- 
fendants ordered  to  plead. 

After  the  trial  of  the  cause  in  due  course  the  jury  returned 
a  verdict  of  not  guilty,  but  that  defendants  pay  tlie  costs.  The 
same  day  defendants  moved  in  arrest  of  judgment,  on  the 
ground  of  duplicity  in  the  indictment.  This  motion  was 
granted  by  the  court,  and  the  following  opinion  filed : 

"  The  twenty-first  and  twenty -second  sections  of  the  act  of 
1860  separate  the  old  common  law  offense  of  forcible  entry  and 
detainer,  and  make  two  distinct  offenses.  The  one  count  in 
the  bill  unites  them.  This  is  duplicity,  and  the  judgment  is 
arrested." 

Thereupon  the  commonwealth  took  this  writ,  assigning  for 
error  the  action  of  the  court  in  arresting  judgment,  instead  of 
entering  judgment  on  the  verdict. 

Ilazh'tt  (with  whom  were  Williums  and  A.  M.  Sloan,  dis- 
trict attorney),  for  plaintiff  in  error. 

IL'cul  (with  whom  were  Morehead  and  II.  W.  Walkinshun), 
for  defendants  in  error. 


11 


Mr,  Justice  Clark  delivered  the  opinion  of  the  court: 
The  defendants  were  tried  on  an  indictment  charging  thoni 
with  forcible  entry  and  detainer.  The  jury  returned  a  verdict 
of  not  guilty,  but  that  the  defendants  pay  the  costs.  The  de- 
fendants moved  in  arrest  of  judgment  that  the  offenses  with 
which  they  were  charged  were  distinct  and  separate;  that  they 
were  coupled  in  one  count,  and  that  the  indictment  was  bad 
for  duplicity.  The  court  sustained  the  motion  and  arrested 
the  judgment,  and  this  is  assigned  for  error. 


COMMONWEALTH  v.  MILLER. 


301 


If  there  be  duplicity  in  this  indictment,  the  defendants  may 
take  advantage  of  the  defect  by  motion  in  arrest  of  judgment; 
if  they  had  voluntarily  entered  their  plea  and  put  themselves 
upon  trial,  they  could  not  now,  ])erhaps,  relieve  themselves 
from  the  consequences  of  an  adverse  verdict  in  this  form;  but 
they  sought  to  avail  themselves  of  this  alleged  defect  at  every 
stage  of  the  case,  and  after  verdict  they  were  without  doubt 
entitled  to  have  the  judgment  arrested  —  if  the  indictment  was 
bad  for  tlie  reasons  stated. 

Several  distinct  misdemeanors  may  be  charged  in  the  differ- 
ent counts  of  tlie  same  indictment,  but  an  indictment  which 
charges  distinct  and  separate  offenses  in  a  single  count  is  gen- 
erally bad  for  dui)licity,  and  upon  proper  application  will  be 
quashed;  the  grand  jury  should  be  allowed  to  pass  upon  the 
charges  separately.  Ilntchlxon  v.  Cometh,!  Norris,  478;  Kil- 
row  V.  Coia'th,  8  Norris,  48t);  Fuhner  v.  Coin'th,  1  Out.,  506. 

It  is  contended  that  forcible  entry  and  forcible  detainer  are 
distinct  offenses,  and  that,  as  they  are  coupled  in  a  single  count, 
the  indictment  is  bad.  It  must  be  conceded,  of  course,  that 
under  the  twenty-first  and  twenty-second  sections  of  the  crimes 
act  these  offenses  are,  in  the  abstract,  distinct  and  separate; 
the  provisions  of  the  statute  are  })lain,  and  it  is  unnecessary,  by 
any  proper  detinition  of  each,  to  draw  the  distinction  between 
them.  But  this  distinction  was  as  clearly  dcHned  before  the  act 
of  ISfiO  as  since.  An  indictment  for  foi'cil)le  entry  was  sus- 
tainable at  common  law:  by  the  statute  15  Rich.  II.,  remedy 
was  given  against  forcible  entries  and  detainers,  but  it  was  by 
tilt'  statute  of  8  Henry  VI.,  ch.  0,  that  forcible  detainer  after 
a  peaceful  entiy  was  dechired  to  be  a  distinctive  offense,  whilst 
restitution  of  possession  was  rendered  pursuant  to  the  act  of 
21  Jac.  1,  cl).  15.  These  statutes  were  held  to  be  in  force  in 
Pennsylvania,  and  prosecutions  for  forcible  entry  and  detainer 
were  genei-ally  brought  in  pursuance  of  their  provisions  and  of 
our  own  statute  of  1700.  1  Sm.  L.,  1.  This  statute  of  17(M», 
and  the  Knglish  statutes  referred  to,  are  supi)lied  by  the  twenty- 
lirst  and  twenty -second  sections  of  the  act  of  1860,  which,  so 
far  as  concerns  the  questions  hero  involved,  are  but  substantial 
re-enactments  of  the  statutes  they  supply.  Com'th  v.  J^oram, 
5  P.  L.I. ,  21)0. 

Prior  to  the  passage  of  the  act  of  1860,  an  indictment  for 


302 


AMERICAN  CRIMINAL  REPORTS. 


forcible  entry  and  detainer  in  a  single  count,  where  the  offenses 
charged  constituted  a  single  transaction,  was  certainly,  accord- 
ing to  the  settled  practice  of  our  criminal  courts.  An  indict- 
ment so  drawn  was  in  conformity  with  established  precedents. 
Whar.  Prec.  (4th  ed.),  489-.  But  a  conviction  might  be  had  on 
such  an  indictment  for  forcible  entry  without  j^roof  of  a  forci- 
ble detainer  (Whar.  Cr.  Law,  sec.  1110;  3  Russ.  on  Cr.,  30.3); 
and  when  it  appeared  that  the  entry  was  peaceable  a  convic- 
tion might  bo  had  for  forcible  detainer  only.  In  the  case  of 
GomHh  V.  liogei'H,  1  S.  &  R.,  124,  the  defendants  were  charged  in 
the  same  form  pursued  in  the  case  at  bar;  the  jury  found  the  de- 
fendants not  guilty  of  forcible  entry,  but  a  portion  of  tlioui 
guilty  of  forcible  detainer.  Chief  Justice  Tilghman  in  that  case 
held  that  a  forcible  entry  and  a  forcible  detainer  were  distinct 
offenses,  and,  although  both  were  charged  in  a  single  count,  he 
held  that  the  defendants  might  be  convicted  of  one  and  acquitted 
of  the  other;  if  one  was  defectively  set  out,  and  tlie  other  well, 
a  conviction  might  be  had  on  that  which  was  well.  That  the 
offenses  are  and  always  have  been  distinct  and  divisible  cannot 
be  doubted. 

"  But  when  a  statute  makes  two  or  more  distinct  acts  con- 
nected with  the  same  transaction  indictable,  each  one  of  which 
iiuiy  be  considered  as  representing  a  phase  in  the  same  otfense, 
it  has,  in  many  cases,  been  ruled  that  they  nuiy  be  coupled  in 
the  one  count.  Thus,  setting  up  a  gaming  table,  it  has  been 
said,  may  be  an  entire  offense;  keeping  a  gaming  table  and 
inducing  others  to  bet  upon  it  may  constitute  a  distinct  otfeiiso; 
for  either,  unconnected  with  the  other,  an  mdictment  will  lie; 
yet  when  both  are  perpetrated  by  the  same  person,  at  the  sanie 
time,  they  may  be  coupled  in  one  count.*'  Wh.  Cr.  PI.,  'lol. 
It  is  not  regarded  as  duplicity  thus  to  join  successive  statu- 
tory phases  of  the  same  offense.  So  a  man  may  be  indicted 
for  the  battery  of  two  or  more  persons  in  the  same  count,  if  it 
was  all  one  transaction,  or  for  the  larceny  of  several  distinct 
articles  belonging  to  different  owners,  if  the  time  and  place  of 
taking  are  the  same.  Fullmer  v.  Oot/i'th,  1  Out.,  506.  The  in- 
dictment in  this  case  sets  forth  the  entry  and  detainer  as  the 
beginning  and  ending  of  the  same  transaction,  occurring  at  the 
same  time,  at  the  same  place,  between  the  same  i)arties,  and 
affecting  the  same  subject-matter.     The  entry  and  the  detainer 


THE  QUEEN  v.  McDONALD. 


808 


are  but  part  and  parcel  of  one  act  or  transaction.  The  offenses 
are  of  the  same  grade  and  kind,  are  punishable  alike,  and  to 
the  same  extent ;  and  under  the  rules  of  criminal  pleading,  and 
according  to  the  established  practice  of  our  criminal  courts,  it 
was  competent  for  the  jury  under  the  form  of  indictment  to 
find  the  defendants  guilty  of  both  or  either,  as  the  proofs  might 
appear. 

We  are  of  opinion  that  this  indictment  is  not  bad  for  duplic- 
ity, and  therefore  the  judgment  of  the  quarter  sessions  is 
reversed,  and  the  record  is  remitted  that  judgment  or  sentence 
may  be  entered  upon  the  verdict. 


The  Qukkn  v.  McDonald. 

;15  Law  Reports,  Q.  B.  Div.,  328.) 

Infant:  When  guilty  of  fraudulent  conversion  of  property. 

An  infant  over  fourteen  years  of  a^e  fraudulently  converted  to  his  own 
use  goods  which  had  been  delivered  to  him  by  the  owner  under  an 
agrpeinent  for  the  hire  of  the  same.  Held,  that  he  was  rightly  coti- 
victed  of  larceny,  as  a  bailee  of  the  goods,  under  24  and  2.5  Vict.,  ch.  96, 
sec.  3. 

Case  stated  for  the  opinion  of  the  court  for  the  considera- 
tion of  crown  cases  reserved,  the  facts  of  wliich  were,  in  sub- 
stance, as  follows : 

The  prisoner,  John  Lawrence  McDonald,  was  indicted  at  the 
easter  quarter  sessions  for  the  county  of  Devon  for  larceny 
as  a  bailee  of  goods,  the  property  of  the  ])rosecutor,  James 
ITumphrey  Brown.  At  the  trial  it  was  proved  that  the  prose- 
cutor was  a  draper  and  furniture  broker  in  Torquay,  and  that 
in  March,  1884,  ho  supplied  certain  furniture  to  the  prisoner 
under  a  hiring  agreement,  the  terms  of  which  were  to  the  fol- 
lowing effect:  The  said  J.  II.  Brown  thereby  let  on  hire,  and 
the  said  J.  L.  McDonald  agreed  to  hire,  the  goods,  furnitun? 
and  effects  specified  in  a  schedule  to  the  contract,  and  which 
had  been  placed  in  a  certain  dwelling-house,  for  the  term  of 
forty-two  months,  at  the  sum  of  £8  per  quarter,  payable  on 
certain  specified  quarter  days;  and  it  was  agreed  that  the  said 
J.  L.  McDonald  would  not  injure  or  damage  the  said  goods, 


11 


3t)4 


AMERICAN  CUBUNAL  REPORTS. 


furniture  and  ofTects,  or  give  any  bill  of  sale  upon  them,  or 
remove  them,  without  the  consent  of  the  3ai<l  J.  II.  I'rown;  and 
that,  if  the  instalments  of  hire  were  not  paid  according  to  the 
terms  of  the  agreement,  or  if  any  execution  were  allowed  to 
be  levied  on  the  said  goods,  furniture  or  elTects,  the  said  J.  H. 
Brown  should  have  immediate  power  to  retake  possession 
theiTof  and  remove  the  same.  It  was  further  agreed  that  the 
said  goods,  furniture  and  effects  should  not  belong  to  the  said 
J.  L.  McDonald  until  the  same  had  been  fully  purchased  and 
paid  for;  but  that,  until  default  were  made  by  him  in  the  terms 
and  conditions  before  expressed,  he  should  and  might  quietly 
hold  and  enjoy  the  said  goods,  furniture  and  effects,  under  the 
provisions  and  terms  thereinbefore  stated,  paying  interijst  on 
the  total  amount  contained  in  the  schedule  at  the  rate  of  five 
per  cent,  per  annum,  monthly  or  quarterly. 

It  was  further  proved  that  the  prisoner  paid  the  first  four 
quarterly  instalments,  and  no  more;  and  that  he  afterwards, 
without  any  notice  to  the  prosecutor,  and  without  the  consent 
or  knowledge  of  the  prosecutor,  removed  the  goods  mentioned 
iii  the  indictment,  being  part  of  those  supplied  him  under  th(( 
contract,  and  sold  the  same.  It  was  also  pi'oved  that  the  pi'is- 
oner  was  born  on  the  21st  of  May,  1SG5,  and  so  was  not  of  full 
age  when  he  entered  into  the  contract  set  out ;  aiid  the  objec 
tion  was  thereupon  raised  by  counsel  on  his  bclialf  that  there 
was  no  case  to  go  to  the  jury,  inasmuch  as  the  only  larceny 
attempted  to  be  proved  against  the  prisoner  was  larceny  of 
goods  of  wliich  he  was,  at  the  time,  bailee  by  virtue  of  the 
contract  above  set  out;  whereas,  by  reason  of  the  prisoner 
being  under  age  when  he  entered  into  the  contract,  it  was  void, 
and  therefore  did  not  operate  to  create  a  bailment  within  the 
meaning  of  24  and  25  A^ict.,  ch.  90,  The  coui-t  of  quarter  ses- 
sions let  the  case  go  to  the  jury,  but  reserved  the  point.  The 
jury  found  the  prisoner  guilty. 


Loun  CoLKRinoK,  C.  J,  I  am  of  opinion  that  this  conviction 
must  be  affirmed.  The  prisoner  is  stated  in  the  case  to  have 
been  indicted  for  larceny  "as  bailee."  Tt  ajjpears  to  me  verv 
doubtful  whether  the  words  "  as  a  bailee "  are  not  mere  sur- 
plusage. The  third  section  of  24  and  25  Vict.,  ch.  96,  sf»\s 
that  a  person  who,  being  a  bailee,  fraudulently  takes  or  con 


THE  QUEEN  v.  Mt DONALD. 


305 


verts  the  property  bailed  to  his  own  use,  shall  l»e  •iuilty  of  lar- 
ceny, and  may  be  convicted  thereof  on  an  indictment  for  lar- 
ceny. It  seems  to  me,  therefore,  possible,  thou<^h  I  express  no 
()|>iiiion  on  the  point,  that  the  ar^Jiment  in  the  present  case 
arises  on  words  which  were  not  material,  bnt  for  the  purposes 
of  my  judgment  I  will  assume  that  tiiey  were  nuiterial.  It  is 
said  tliat  the  prisoner  cannot  be  convicted  of  larceny  as  a  bailee, 
because,  beinfj  an  infant,  he  was  not  competent  to  enter  into  a 
contract  of  bailment;  that  the  ofTen.se  char<,^ed  a^^ainst  him  de- 
pending u])on  his  having  acted  in  a  manner  inconsistent  with 
the  terms  of  a  contract,  he  being  imable  to  enter  into  such  a 
contract,  cannot  be  guilty  of  the  offense.  It  seems  to  me  that 
tlii.s  contention  is  based  upon  an  assumption  which  is  not  cor- 
rect in  law.  It  is  not  correct,  as  it  appears  to  nie,  to  use  the 
ex |>ression  "contract  of  bailment"  in  a  sense  which  implies 
that  every  bailment  must  necessarily  in  itself  l)e  a  contract. 
I  do  not  so  understand  the  definition  of  the  term  '*  bailment." 
It  is  perfectly  true  that  in  almost  all  cases  a  contract  either  ex- 
|)i'ess  or  implied  by  law  accompanies  a  bailment,  but  it  seems 
to  nie  that  there  nuiy  be  a  comi)lete  bailment  without  the  con- 
tract. Accoi'ding  to  all  the  definitions,  as,  for  instance,  those 
given  in  Sir  AVilliam  Jones,  IJIackstone  and  Kent's  Commen- 
taries, l'2th  ed.,  p.  7»>4,  it  would  ajjpear  that  a  bailment  con- 
sists in  the  deliver}-  of  an  article  upon  a  condition  or  trust.  It 
is  true,  I  know,  that  the  authors  of  those  various  definitions  go 
on  to  say  that  there  is  a  promise  or  contract  to  restore  the 
goods,  but  this  is  not,  as  it  seems  to  me,  the  bailment  itself,  but 
a  contract  that  arises  out  of  it.  It  nuiy  be  true  that  the  pris- 
oner in  the  present  case  could  neither  ex))ressly  nor  impliedly 
))roniise  to  restore  the  goods,  but.  nevertheless,  he  had  the 
goods  delivered  to  him  on  a  condition  or  trust,  and  so  delivere<l 
as  to  create  in  him  a  s])ecial  property.  That  being  so,  he  fraud- 
ulently appropriates  them  to  his  own  use  in  a  manner  incon- 
sistent with  the  special  i)roperty  so  created.  The  third  section 
of  2i  and  25  Vict.,  ch.  9(5,  says  in  effect  that  a  person  who  has 
obtained  delivery  of  and  a  special  property  in  goods,  and  who 
cannot,  therefore,  at  common  law,  be  guilty  of  larceny  of  such 
goods,  shall,  if  he  fraudulently  take  or  convert  the  same  to  his 
own  use,  be  guilty  of  statutory  larceny.  It  seems  to  me  that 
undoubtedly  the  prisoner,  though  a  minor,  had  the  special  prop- 
VoL.  V--20 


■A  a  ■ 


(Mf*»-'" 


P-1! 


30G 


AMERICAN  CRIMINAL  REPORTS, 


erty  in  or  i-lglit  of  possession  of  tlioso  goods,  wliicli  was  con- 
templated by  those  wlio  framed  this  enactment  wlien  they  iis(>d 
the  term  of  ■■* bailee;"  that,  having  such  special  property,  ho 
proceeded  to  abuse  it  and  fraudulently  to  convert  the  goods  to 
his  own  use;  and  that  he  is,  therefore,  guilty  of  the  offense  cre- 
ated by  the  section.  1I(>  is  guilty  of  the  offense,  not  because 
he  has  broken  a  contrac*^  whicli  he  was  incapable  of  niakin<'- 
but  because,  being  capable  of  l)ecuminga  bailee  of  these  goods. 
and  liaving  become  one.  lie  dealt  with  the  goods  in  such  a 
manner  as  by  the  terms  of  the  act  to  render  him  guilty  of  the 
crime  of  larceny. 

Cavk,  J.  I  am  of  the  same  o[)inion.  The  case  is  one  of 
some  legal  interest,  because  it  raises  the  question  that  was  dis- 
cussed and  left  undetermined  in  the  case  of  lieg.  v.  liohson,  L. 

&  c,  0:5. 

On  consideration  of  the  ])oint  I  have  come  to  the  conclusion 
that  the  conviction  should  be  alHrmed,  on  the  following  groimds : 
The  dof'nitions  of  the  term  "  bailment,"  as  given  by  the  author- 
ities, sucii  as  Sir  William  Jones  and  lUackstone,  are  very  siniihir. 
I  will  take  that  given  by  Sir  William  Jones  as  an  exain])!o. 
He  defines  a  bailment  to  be  "a  delivery  of  goods  on  a  condition 
expi-ess  or  implied  that  they  shall  be  restored  by  the  bailee  to 
the  bailor,  or  according  to  his  directions,  as  soon  as  the  purpose 
for  which  they  were  bailed  shall  be  answered."  A  bailment, 
therefore,  is  a  delivery  on  condition.  It  is  true,  no  doubt,  that 
the  law  usually  implies  upon  such  a  bailment  a  contract  to 
redeliver  when  there  is  not  an  express  promise  to  do  so.  In 
the  case  of  a  married  woman  it  has  been  held  that  no  sucli 
contract  could  at  common  law  be  implied,  but,  though  there 
be  no  contract,  the  fact  of  the  delivery,  which  is  a  deli  erv 
upon  contlition,  still  remains,  and  the  whole  transaction  is  not 
a  mere  nullity.  That  there  may  be  a  bailment  without  a  con- 
tract seems  to  me  to  be  shown  conclusively,  if  it  be  the  case 
t!iat  the  delivery  upon  condition  creates  in  the  infant  a  special 
property  which  comes  to  an  end  when  the  condition  is  fulfilled, 
the  entire  property  then  reverting  to  the  bailor.  The  delivery 
of  goods  on  a  condition  to  an  infant  must,  as  it  appears  to  me. 
create  in  him  a  special  property  which  is  so  far  recognized  and 
protected  by  the  law  that  he  could  bring  an  action,  whilst  tiio 


L. 


STATE  V.  NIXON. 


807 


special  property  lasted,  against  any  person  depriving  him  of 
tJie  goods.  His  property,  however,  is  not  absolute ;  it  can  only 
exist  till  the  condition  is  fulfilled ;  the  owner  can  then  demand 
the  return  of  the  property  and  maintain  an  action  for  the  con- 
version of  it  if  not  redelivered.  The  law  thus  recognizing  a 
special  property  in  the  infant,  lie  is  to  all  intents  and  purposes 
a  bailee  of  the  goods,  though  the  law  does  not  in  liis  case  imply 
a  contract  to  perform  the  terms  of  the  bailment.  That  being 
so,  it  seems  to  me  that  the  case  is  clearly  within  the  mischief 
of  the  third  section  of  24  and  25  Vict.,  ch.  90,  and  I  cannot 
see  why  the  infant  is  not  a  bailee  for  the  purposes  of  the 
section. 

Day,  Smith  and  Wills,  JJ.,  concurred. 

Some  doubt  having  been  raised  as  to  tlie  correctness  of  the 
above  decision,  the  question  was  subsequently  ordered  to  be 
re-argued,  and  was  re-argued  on  the  20th  of  June  before  Lord 
(Jolcridge,  C.  J.,  Grove  and  Denman,  JJ..  Pollock,  B.,  Field, 
,).,  lluddleson,  B.,  Manisty,  Hawkins,  JMathcw,  Cave,  Day, 
Smith  and  Wills,  JJ. 

The  lord  chief  justice  stated  that  the  court  did  not  sit  as 
a  court  of  criminal  appeal  to  hear  the  case  by  way  of  appeal 
against  the  above  decision,  but  as  an  assembly  of  the  judges 
in  accordance  with  the  old  pnictice  at  common  law  previous 
to  the  statute  11  and  12  Vict.,  ch.  78. 

After  the  court  had  heard  the  arguments  of  the  counsel  for 
the  prisoner  and  for  the  crown,  the  lord  chief  justice  an- 
nounced that  the  majority  of  the  court  were  of  opinion  that 

the  prisoner  was  rightly  convicted. 

Conviction  affirmed. 


State  v.  Nixon. 

(32  Kan.,  20r).) 

Insanity  as  a  defense;  Instructions  —  Reasonable  doubt. 

1.  Test  op  mental  capacity.— A  person  accused  of  crime  who  had  suf- 
ficient intelligence  and  reasoning  powers  to  know  what  he  was  doing, 
that  it  was  wrong,  and  tlie  will  and  mental  powers  to  do  or  not  to  do 
it,  in  contemplation  of  law  is  responsible. 


wsaen^xsiif :. 


308 


AMERICAN  CRIMINAL  REPORTS. 


m 


2,  Reasonable  doubt  as  to  sanity.— Where  the  jury  entertain  a  reason- 
able doubt  as  to  whether  the  defendant  is  sane  or  insane,  with  respect 
to  the  particular  acts  charged  against  him,  they  should  acquit. 

Appeal  from  Russell  District  Court. 

W.  A.  Jo/mstoii,  attorney-general,  and  Edwin  A.  Austin,  for 
the  state. 
J.  G.  Mohler.  for  appellant. 

Valentine,  J.  This  was  a  criminal  pi'osocution  for  murder 
in  the  first  degree.  The  defendant,  Daniel  M.  Nixon,  was 
charged  with  killing  William  Crawford,  in  Trego  county,  on 
the  9th  day  of  September,  1SS<»,  l>y  shooting  him  with  a  gun 
loaded  with  gunpowder  and  leaden  balls.  For  reasons  not 
necessary  to  be  stated,  the  case  was  tried  in  Russell  county, 
where  the  defendant  was  convicted  of  murder  in  the  second 
degree,  and  sentenced  to  imi)risoninont  for  life.  On  the  trial 
it  was  admitted  by  the  defendant  that  he  killed  Crawford,  as 
charged  in  the  information,  but  he  intcposed  two  defenses: 
First,  self-defense;  seroml,  insanity;  the  latter  of  which  was 
the  real  and  the  important  defense. 

No  claim  is  made  in  this  court  that  the  court  below  erred 
with  reference  to  tiie  first-named  defense;  hence  it  is  not  neces- 
sary for  us  to  again  mention  it. 

With  reference  to  the  defense  of  iusanitj'-,  the  defeiulant 
claims  that  the  court  l)elow  erred  in  its  instructions  given  to 
the  jury,  and  also  err(>d  in  refusing  to  give  certain  other  in- 
structions Jisked  for  l)y  him.  and.  consecjuently,  erred  in  over- 
ruling the  defendant's  motion  IVm'  a  new  trial;  and  these  are 
the  only  rulings  of  the  court  l)elow  tilhsged  for  cr''or  in  this 
court,  or  relied  upon  by  tin;  defendant  for  a  reversal  of  tlu; 
judgment  of  the  court  below.  The  instructions  given  by  the 
court  below  with  reference  to  insanity  read  as  follows: 

"The  counsel  for  the  defendant  claim  also,  here,  that  the  de- 
fondant  should  not  be  held  responsible  for  those  acts  alleged  or 
proved  against  him,  no  matter  what  X\w\  are.  because  of  the 
fact  of  the  defendant's  insanity.  Upon  this  (piestion,  I  say,  in 
the  outset,  that  the  cardinal  rule  of  n.'sponsibility  in  the  crim- 
inal law,  when  judging  of  the  acts  of  men,  is,  was  the  accused, 
at  the  time  of  doing  the  act  complained  of,  conscious  of  tlio 
nature  of  his  act,  or  did  he  know  that  it  was  wrong  to  do  it  ^ 


Til 


STATE  V.  NIXON. 


309 


"  Now  there  arc  many  sorts  of  diseases  of  the  mind  that  are 
dwelt  upon  and  discussed  by  physicians  and  psychologists  in 
these  days,  and  that  are  presented  in  court  for  the  considera- 
tion of  a  jury,  and  upon  which  the  jury  is  asked  to  find  that 
the  mind  of  the  accused  was,  at  the  time  in  question,  so  over- 
thrown as  to  make  him  wholly  irresponsible,  and  therefore 
that  ho  should  be  acquitted  for  his  otherwise  unlawful  actt;. 
Now, liowever  varied  tliese  diseases  maybe, —  for  they  may  bo 
as  varied  as  the  diseases  of  the  body, —  I  say  to  you,  they  all 
come  under  the  j^reat  or  generic  head  of  insanity,  and  the 
main  test  is  the  rule  that  I  have  just  given.  All  else  is  argu 
ment  or  minor  rule  under  this  head,  and  which  must  resolve 
itself  back  to  it.  I  will  not  discuss  the  evidence  in  the  case 
upon  this  question, —  counsel  will  do  so  at  length,  I  appre- 
hend,—  and  after  applying  it  to  the  rules  I  herein  lay  down,  I 
trust  you  may  be  fully  aljle  to  discern  that  Avhich  is  right. 
One  or  two  things  more,  however,  1  sliould  say: 

"The  testimony  here,  by  deposition  and  otherwise,  covers 
several  years  in  the  dei^eiulaut's  life.  This  is  all  proper  tes- 
timony, and  you  should  consider  it  for  what  you  may  think  it 
is  worth  as  bearing  upon  the  question  as  I  have  stated  it,  re- 
membering that  it  is  the  condition  oi  the  <lefendant's  mind  at 
the  time  when  he  lired  the  fatal  shot  or  shots  upon  which  you 
are  to  judge  him,  and  that  all  or  any  of  this  testimony  is  only 
competent  as  it  may  throw  light  upon  his  ])robable  and  actual 
con(Htion  at  that  point  of  time.  Some  of  the  witnesses  have 
testilied  that  the  defendant  had  the  reputation  at  his  old  homo 
in  Illinois  of  being  insane.  Some  witnesses  have  given  it  as 
their  opinion,  from  accjuaintance  with  and  knowledge  of  him 
and  his  acts,  that  he  was  insane;  some,  that  he  was  sane  on 
some  subjects  and  insane  on  others ;  some,  that  he  was  insane 
at  times  and  sane  at  others ;  some,  that  he  was  melancholy  at 
times;  one,  at  least,  that  his  reputation  was  of  laboring  under 
delusions;  others,  that  he  was  eccentric,  and  so  forth.  You 
should  consider  this  testimony  as  it  is.  1  do  not  pretend  to 
quote  it,  but  only  to  partially  classify  it.  Afany  of  these  wit- 
nesses have  testilied  as  to  circumstances  in  his  life,  and  that 
the  reasons  of  the  conditions  of  mind,  or  some  of  them,  that 
they  have  given,  were  from  special  causes  named  by  them. 
These  causes  are  at  least  three  or  four.     You  should  also  con- 


I 


\     "k: 


■!''#,W-' 


310 


AMERICAN  CRIMINAL  REPORTS. 


sider  the  testimony  of  those  wi*  lesses  who  testify  of  him  since 
his  residence  in  Kansas.  The  defendant  himself  has  also  ap- 
peared before  you.  If  you  should  believe,  from  all  this  testi- 
mony and  circumstances,  that  the  mind  of  the  defendant  was 
diseased,  you  would  then  further  inquire:  Was  he  at  the  time 
of  the  killing  laboring  under  such  a  defect  of  reason  and  in- 
tellect as  not  to  know  the  nature  and  quality  of  that  particular 
act  he  was  doing;  or,  if  he  did  know  this,  that  he  did  not 
know  that  he  was  doing  wrong?  If  ho  had  sufficient  iulolli- 
gence  and  reasoning  powers  to  know  what  he  is  doing;  tliat  it 
was  wrong;  and  the  will  and  mental  powers  to  do  or  not  to  do 
it, — then,  in  contemplation  of  law,  lie  is  responsible  for  the 
act  he  has  done.  The  law  recognizes  what  seems  to  be  an  in- 
controvertible fact,  that  a  person  may  be  sane  upon  some  (jiics- 
tions  and  insane  upon  othei's,  and  that  he  will  be  responsible 
morally  and  legally  for  acts  done  on  those  subjects  on  which 
he  is  sane,  and  irresjjonsihle  for  action  upon  those  sul)jects 
wherein  he  is  insane.  Hence  the  rule  that  1  have  laid  down; 
and  the  question  always  is  as  to  sanity  and  respoiisihility 
upon  the  particular  act  in  (piostion.  Tliis  is  called  partial  in- 
sanity, and  it  is  not  necessary  that  it  should  be  total.  In  this, 
as  in  all  cases  of  prosecution  for  allegetl  crime,  the  defendant 
is  presumed  to  be  innocent  of  the  charge  made  against  hun, 
and  innocent  of  any  other  degree  of  crime  included  in  such 
charge;  innocent  of  the  act  alleged  to  have  been  done  and  in 
nocent  of  any  guilty  intent.  This  presumption  stands  at  law 
ami  continues  until  and  unless  the  contrary  is  proven  by  the 
evidence,  and  until  each  and  every  ingredient  and  element  of 
the  crime  is  i)roved  by  such  evidence. 

"  When  there  is  a  reasonable  doubt,  therefore,  whether  tiie 
guilt  of  the  defendant  is  satisfactorily  ]iroven  by  the  evidence, 
you  must  acquit;  and  when  such  guilt  is  satisfactorily  proven, 
but  there  is  a  reasonable  doubt  in  which  of  two  or  more  do,- 
grees  of  an  offense  the  «h;fendant  is  guilty,  there  can  be  only 
a  conviction  for  the  lower  dtiiree. 


"Upon  the  question  of  insanity,  I  say  that  every  person  is 
supposed  [presumed]  in  the  law  to  be  sane  until  tlie  contrary 
appears.  It  devolves  upon  the  defendant,  therefore,  in  tli') 
first  instance,  to  raise  the  (]uestion.     When  he  does  so,  and  iii- 


■•H.!,.^ 


STATE  V.  NIXON. 


311 


troduces  testimony  fairly  tending  to  prove  the  same,  our  supreme 
court  has  laid  down  the  following  rule :  '  In  a  criminal  action, 
wliere  the  defense  of  insanity  is  set  up,  it  does  not  devolve 
upon  the  defendant  to  ]n'o\c  that  he  is  insane  by  a  preponder- 
ance of  the  evidence;  but  if,  upon  the  wliole  of  tlie  evidence 
introduced  on  tlie  trial,  together  with  all  the  legal  ])resump- 
tions  applicable  to  the  case  under  the  evidence,  there  should  be 
a  reasonable  doubt  as  to  whethei'  tlie  defendant  is  sane  or  in- 
sane, he  must  be  acquitted.'  And  whei'e  habitual  unsoundness 
of  mind  is  once  shown  t»>  exist,  either  wholly  or  ])artially,  it  is 
presumed  to  continue  until  the  i)rt-'sumption  is  rebutted  by  com- 
petent proof. 

'•  The  jury  can,  in  determining  this  case,  or  any  question  in- 
volved, take  into  consitleration,  or,  rather,  call  to  their  aid,  all 
siicli  "cneral  knowledije  as  is  common  to  mankind. 

••  If  you  should  not  be  satisliinl  tiiat  the  defense  of  insanity 
sliould  i>revail,  you  sliould  consider  any  testimonv  introduced 
upon  that  question  for  whatever  you  might  think  it  worth,  as 
hearing  upon  the  question  of  the  beliefs  of  the  defendant  of  the 
imminence  of  his  danger  when  assailed  by  the  deceased,  if  you 
should  believe  he  was  assailed.  In  fact,  you  should  decide  no 
(piestion  until  considering  all  the  evidence  that  may  bear  upon 
it.     .     .     . 

"  If  you  should  believe  that  the  allegations  of  the  information 
would  be  made  out  by  the  state  were  there  no  defense  here,  iv 
would  be  well,  then,  for  you  to  consider  —  F'lrtif,  this  defense 
of  insanity.  If  you  should  say  that  it  should  prevail,  under  tlni 
lilies  1  have  given  you  on  that  subject,  you  would  then  acquit; 
for  if  ii  man  is  mA  found  responsible  for  his  act  in  law,  he  is 
innocent  of  it,  no  matter  liow  monstrous,  physically,  it  may 
appear.  iJut  if  you  should  here  say  he  should  be  held  res))on- 
siblo  for  it,  you  would  then  turn  and  determine  more  exactly 
the  nature  of  the  act  itself,  and  here  would  arise  the  question 
of  self-defense." 

The  defendant  asked  the  court  below  to  give  certain  instruc- 
tions to  the  jury,  which  the  court  refused,  and  the  defendant 
fluly  excepted,  among  which  are  the  following,  which  the  de- 
fendant still  claims  the  court  below  erred  in  refusing  to  give, 
to  wit: 
■•  1 2)  In  criminal  trials  the  burden  of  proof  is  always  on  the 


312 


AMERICAN  CRIMINAL  REPORTS. 


state,  and  it  never  shifts  to  the  defendant.  The  stata  is  tliero- 
fore  required  to  make  out 'every  portion  of  its  case  by  comjx'- 
tent  testimony,  or  the  defendant  must  be  acquitted. 

"  (5)  In  a  criminal  action,  when  the  defense  of  insanity  is 
set  up,  it  tl"."-  ot  devolve  upon  the  defendant  to  prove  that  he 
is  insun'>  ->  .'preponderance  of  tlie  evidence;  but  if,  upon 
the  whole  .X  t!:..  evidence  introduced  on  the  trial,  together 
with  all  the  legal  presumptions  applicable  to  the  case,  undL'i- 
the  evidei  ce,  t'^^re  sik  i:M  be  a  reasonable  doubt  as  to  whether 
the  defendant  is  sane  <jf  insj'iie,  he  must  be  acquitted. 

"(.54)  Where  habitual  unsoundness  of  mind  is  once  shown  tu 
exist,  either  wholly  or  partially,  it  is  presumed  to  continue  to 
exist  until  the  presumption  is  rebutted  by  competent  proof 
bevond  a  reasonable  doubt. 

■  •«■•  ••••■• 

"  {\^)  So  far  as  a  person  acts  under  the  influence  of  mental 
disease  he  is  not  criminally  accountable;  and  the  jury  in  a 
criminal  case  must  be  satislied  l)eyond  a  reasonable  doubt  of 
the  defendant's  mental  capacity  to  commit  the  crime  charged, 
or  they  must  ac(juit.  The  defendant  in  a  criminal  case  is  not 
required  to  prove  his  insanity  in  order  to  avail  himself  of  tliat 
defense,  but  merely  to  create  a  reasonable  doubt  on  this  point, 
whereu|)on  the  burden  of  ))roving  his  sanity  falls  upon  the 
state. 

"  (10)  Where  the  delusion  of  a  party  is  such  that  he  has  a 
real  and  firm  belief  of  the  existence  of  a  fact  which  is  wholly 
imaginary,  and  under  that  insane  belief  he  does  an  act  which 
would  be  justifiable  if  such  fact  existed,  ho  is  not  responsii)lc 
for  such  act. 

"  If  the  jury  entertain  a  reasonable  doubt  as  to  the  sound- 
ness of  the  mind  of  the  prisoner  at  the  time  of  the  commissi<in 
of  the  homicide  charged,  he  is  entitled  to  the  benefit  of  tlwit 
doubt,  as  he  would  be  to  the  benefit  of  a  doubt  as  to  any  other 
material  fact  in  the  case;  it  being,  under  the  statute  of  this 
state,  a  necessary  ingredient  of  the  ott'ense  that  the  person 
charged  shall,  at  the  time  of  the  commission  of  tlie  pfi'ense,  be 
of  sound  mind ;  and  if  the  evitlence  shows  that  the  prisoner,  at 
the  time  of  the  commission  of  the  act,  was  not  of  sound  mind, 
although  the  jury  may  believe  he  had  judgment  and  reason 


STATE  V.  NIXON. 


31;} 


sufficient  to  discriminate  between  right  and  wrong  in  the  o»'- 
(linary  affairs  of  life,  even  at  the  time  of  the  commission  of  the 
offense,  they  cannot  find  him  guilty,  but  must  acquit. 

''(11)  If  the  jury  believe  that  the  defendant,  at  the  time  of 
the  alleged  homicide,  labored  under  a  partial  delusion  only,  and 
is  not  in  other  respects  insane,  he  must  be  considered  in  the 
same  situation  as  to  responsibility  as  if  the  fact  with  regard  to 
which  the  delusion  exists  was  real.  For  example,  if,  under  the 
influence  of  his  delusion,  he  sui)poses  another  man  to  be  in  the 
act  of  attempting  his  life,  anil  he  kills  that  man,  as  he  supposes, 
in  self-defense,  he  will  be  exempt  from  punishment,  and  in  such 
case  you  must  acquit. 

"(12)  Monomania  may  operate  as  an  excuse  for  a  criminal 
act  when  the  delusion  is  such  that  tli'  person  under  its  influ- 
ence has  a  real  and  firm  belief  of  some  fact  not  true  in  itself, 
but  which,  if  it  were  true,  would  excuse  his  act;  as,  when  the 
belief  is  that  the  party  killed  had  an  immediate  design  upon  his 
life,  and  under  that  belief  tiie  insane  man  kills  in  supposed 
self-defense,  in  such  case  he  is  not  guilty,  and  you  must  acquit. 

"  (13)  If  the  jury  believe  from  the  evidence  that  the  defend- 
ant was  insane  at  times,  but  not  continuously  so,  then  it  will 
devolve  upon  the  state  to  })rove  to  the  satisfaction  of  the  jury, 
beyond  all  reasonable  doubt,  that  at  the  time  of  the  homicide 
the  defendant  was  not  laboring  under  such  insanity,  and  com- 
mitted the  act  in  one  of  his  sane  intervals;  and  unless  the  state 
so  proves  to  your  satisfaction,  beyond  all  reasonable  doubt, 
you  must  acquit." 

The  defendant  excepted  to  the  refusal  of  the  court  to  give 
the  iastructions  asked  for  by  him,  but  did  not  except  to  the 
charge  of  the  court,  or  to  any  portion  thereof,  or  to  any  in- 
struction given  by  the  court  to  the  jury,  except  as  follows: 

"To  the  giving  of  which  iiistructions,  and  to  each  and  every 
portion  thereof,  said  defenuant,  Daniel  M.  Nixon,  by  his  attor- 
no}',  then  and  there  duly  excepted.  At  the  close  of  which  charge 
the  counsel  for  the  defense,  J .  G.  Mohler,  Esq.,  arose  and  said : 
'  If  it  please  the  gentlemen  on  the  other  side  we  will  submit 
this  case  without  argument.  The  charge  of  the  court  suits  us, 
is  plain,  and  a  better  speech  than  we  can  make,  and  we  will 
submit  the  case  right  here.* '' 

The  counsel  for  the  prosecution,  however,  did  not  agree  to 


I- 


314 


AMERICAN  CRIMINAL  REPORTS. 


1-,  aj 


submit  the  case  without  argument,  and  so  the  case  was  argued 
by  counsel  to  the  jury,  and  the  jury  found  the  dol'endant  guilty, 
as  heretofore  stated. 

The  first  question  to  be  considered  in  ibis  case  is  whetlioi* 
the  court  below  adopted  the  correct  rule  with  reference  to 
criminal  rcsponsibihty  in  cases  of  insanity.  The  court  below- 
stated  the  rule  as  follows:  "  AV^as  the  accused,  at  the  time  of 
doing  the  act  complained  of,  conscious  of  the  nature  of  his  act, 
or  did  he  know  that  it  was  wrong  to  do  it."  AVe  think  tlio 
rule  as  stated  by  the  court  below  is  substantially  correct. 
Where  a  person,  at  the  time  of  the  commission  of  an  allcgt'd 
crime,  has  suflicient  mental  capacity  to  understand  tlio  nature 
and  quality  of  the  particular  act  or  acts  constituting  tiie  crime, 
and  tlie  mental  capacity  to  know  wiiether  they  are  right  or 
wrong,  he  is  generally  responsible  if  he  commit  such  act  or 
acts,  whatever  may  be  his  capacity  in  other  pai-ticuhirs;  but  if 
he  does  not  possess  this  degree  of  capacity,  tlion  he  is  not  so 
responsible.  In  otlier  words,  if  he  has  mental  cai)acity  suHi- 
cient  to  distinguish  between  right  and  wrong,  with  respect  to 
the  i)articular  act  or  acts  constituting  the  alleged  crime,  he 
should  be  held  responsible  for  the  commission  of  such  act  or 
acts,  although  he  might  be  insane  or  imbecile  with  respect  to 
other  matters;  but  if  he  does  not  possess  such  capacity,  then, 
of  course,  he  should  be  held  to  be  irres[)()nsible. 

We  do  not  think  that  it  is  necessary  to  cite  authoi'ities  upon 
this  subject,  as  all  the  leading  cases  with  reference  thereto  nuiy 
be  found  quoted  ov  cited  in  Lawson's  work  on  "  Insanity  as  a 
Defense  to  Crime."  It  is  possible  that  an  insane  uncontrollable 
iiiipulse  is  sometimes  sufficient  to  destroy  criminal  responsibil- 
ity, but  this  is  probably  so  only  where  it  ilesti'oys  the  power 
of  the  accused  to  comprehend  rationally  the  nature,  character 
and  consequences  of  the  particular  act  or  acts  chargeel  against 
him,  and  not  where  the  accused  still  has  the  i)ower  of  know- 
ing the  character  of  the  particular  act  or  acts,  and  that  they 
are  Avrong.  Indeed,  it  would  seem  dangerous  to  society  to  say 
that  a  man  who  knows  what  is  right  and  wrong,  may,  never- 
tlieless,  for  any  reason,  do  what  he  knows  to  be  wrong  without 
any  legal  responsibility  therefor.  The  law  will  hardl  ,■  recog- 
nize the  theory  that  any  uncontrollable  impulse  may  so  ta'.  ■: 
possession  of  a  man's  faculties  and  powers  as  to  compel  him  to 


STATE  V.  NIXON. 


815 


do  what  he  knows  to  be  wrong  and  a  crime,  and  thereby  re- 
lieve him  from  all  criminal  responsibility.  Whenever  a  man 
understands  the  nature  and  character  of  an  act,  and  knows 
that  it  is  wrong,  it  would  seem  that  he  ought  to  be  held  legally 
responsible  for  the  commission  of  it,  if  in  fact  he  does  com- 
mit it.  But  upon  this  question  of  insane  uncontrollable  im- 
pulse we  do  not  wish  to  express  au}^  very  definite  opinions,  as 
we  do  not  think  the  question  is  presented  to  us  in  this  case. 

The  next  question  to  be  considered  is,  whether  the  court 
below  erred  in  charging  the  jury  with  respect  to  the  burden 
of  proof.  The  defendant  claims  that  the  court  lielow  erred  in 
not  charging  the  jury,  that  if,  from  the  evidence,  they  enter- 
tained a  reasonable  doubt  as  to  whether  the  defendant  was 
sane  or  insane,  they  should  acquit.  T/ie  State  v.  C/'awford,  11 
Ivan.,  32.  Now,  it  would  seem  that  the  court  below  did  not 
charge  the  jury  to  this  eifect  in  as  direct  and  explicit  terms  as 
it  ])robably  should  have  done;  but  still  we  think  the  court  gave 
substantially  this  charge.  In  the  first  place,  the  court,  in  its 
instructions  to  the  jury,  defined  murder  to  be  ''  when  a  person 
of  Hound  inemofij  and  dlsei'etum  unlawfully  killeth  any  reason- 
able creature  in  being,  and  in  the  peace  of  the  state,  with 
malice  aforethought,  cither  express  or  implied;"  and  instructed 
the  jury  that  even  murder  in  the  second  degree  "  must  be  com- 
mitted pui'pofteli/  and  tnaliclouHhjP  It  will  therefore  be  seen, 
from  this  definition,  that  murder  can  be  committed  only  by  "a 
person  of  sound  memory  and  discretion,"  and  only  by  a  per- 
son who  could  commit  the  same  ''  pui'posely  and  maliciously." 
In  other  words,  insane  persons  cannot  commit  murder.  Hence, 
if  the  defendant  was  insane  as  to  the  particular  act  or  acts 
with  which  he  was  charged,  he  did  not  commit  murder.  The 
court  also  instructed  the  jury  that  the  defendant  was  to  be 
l)resumed  innocent  until  the  contrary  was  proved,  and  until 
each  and  every  ingredient  and  element  of  the  offense  was 
l)rovcd ;  and  that  if  there  was  a  reasonable  doubt  as  to  whether 
his  guilt  was  satisfactorily  shown,  he  must  be  actjuitted.  Now, 
if  the  jury  had  a  reasonable  doubt  as  to  whether  the  defend- 
ant was  sane  or  not,  with  respect  to  the  matters  charged 
against  him,  they  must  necessarily  have  had  a  reasonable  doubt 
as  to  whether  he  was  guilty  of  murder  or  not;  for  if  he  was 
insane  he  could  not  have  been  guilt}'  of  murder.    That  is,  to 


\  . 


!^ir 


316 


AMERICAN  CRIMINAL  REPORTS. 


(lonbt  his  sanity  was  to  doubt  his  guilt;  and  the  jury  were  in- 
structed tliat  if  they  entertained  a  reasonable  doubt  of  his 
guilt  they  must  acquit.  And  this  general  instruction  with  re- 
gard to  "  reasonable  doubt "'  covered  the  question  of  soundness 
of  mind,  or  insanity,  as  well  as  all  other  questions  in  the  case. 
The  court  also  instructed  the  jury  that  "in  a  criminal  action, 
where  the  defense  of  insanity  is  set  up,  it  does  not  devolve 
upon  the  defendant  to  prove  that  he  is  insane  by  a  prepondei-- 
ance  of  the  evidence,  but  if,  upon  the  whole  of  the  evidence 
introduced  on  the  trial,  together  with  all  the  legal  presump- 
tions applicable  to  the  case,  under  the  evidence,  there  should 
be  a  reasonable  doubt  as  to  wiiethcr  the  defendant  is  sane  or 
insane,  ho  must  be  acquitted." 

We  think  it  is  true  that  some  of  the  instructions  of  the  court 
below  are  justly  subject  to  the  criticism  which  counsel  for  the 
defendant  has  seen  fit  to  bestow  upon  them,  and  yet  we  can- 
not say  that  any  of  them  are  so  erroneous  as  to  require  a  i-e- 
versal  of  the  judgment  below.  The  (hfemlant  in  this  case, 
through  his  counsel,  did  hifwt  ^'-  raim  the  question  "  of  insan- 
ity, and  did  in  fact  Iritrod ii<:e  '■'  iesinwony  fairly  tending  to 
prove  the  same,"  and  the  court  instructed  the  jury  that  all 
such  testimony  was  proper,  and  should  be  considered  by  the 
jury.  Hence,  so  far  as  this  case  is  concerned,  it  is  immaterial 
that  the  court  below  instructed  the  jury  that  it  devolved  u])on 
the  defendant  in  the  first  instance  to  r((i.se  the  question  of  in- 
sanity, and  to  infrodxoe  testimony  fairly  tending  to  pi'ovc  the 
same;  for  such  was  in  fact  and  beyond  all  doubt  done;  and  >i(i 
evidence  was  introduced  by  the  prosecution,  or  by  any  one  else 
except  the  defendant,  tending  to  prove  that  the  defendant  was 
insane. 

AVith  respect  to  the  special  instructions  asked  for  by  the  de- 
fendant and  refused  by  the  court,  we  think  the  court  should 
have  given  some  of  them.  AVe  think  the  court  should  luive 
given  the  instructions  numbered  5,  5.^  and  \).  The  court,  how- 
ever, did  give  the  instructions  numbered  5  and  ^,  except  that 
it  Struck  out  from  the  one  numbered  5^  the  words  "beyond  a 
reasonable  doubt."  We  think  these  words  should  have  been 
allowed  to  i^emain;  yet,  as  the  court  gave  other  instructions 
Avith  reference  to  reasonable  doubt,  we  cannot  say  that  the 
court  committed  such  material  error  by  striking  these  words 


STATE  V.  NIXON. 


311 


out  as  to  require  a  reversal  of  its  judjrment.  The  instruction 
numbered  9  also  seems  to  have  been  substantially  given  in 
other  instructions.  Instructions  numbered  10,  11  and  12  are 
hardly  applicable  to  this  case,  and  might  have  misled  the  jury 
if  they  had  been  given.  Insti  mictions  2  and  13  might  properly 
have  been  given,  though  we  cannot  say  that  the  court  erred  in 
refusing  them.  Besides,  it  might  have  been  necessary  to 
change  these  instructions  in  some  particulai-s  in  order  to  pre- 
vent their  misleading  the  jury.  With  respect  to  instruction 
numbered  2,  we  might  further  say  that  the  court,  in  its  gen- 
eral charge,  instructed  the  jury  that  the  burden  of  proof  was 
on  the  state,  and  that  it  devolved  upon  the  state  to  prove  the 
defendant's  guilt  beyond  a  reasonable  doubt;  and  this  would 
seem  to  be  all  that  was  necessai'v.  Indeed,  it  would  seem  that 
the  court  below  gave  to  the  jury,  in  its  general  charge,  the 
substance  of  all  the  instructions  asked  for  by  the  defendant 
which  the  court  was  bound  to  give. 

After  a  careful  consideration  of  the  whole  case,  \ve  have 
friund  ourselves  unal)le  to  say  that  the  court  below  committed 
any  material  error,  and  therefore  its  judgment  will  be  af- 
firmed. 


(All  the  justices  concurring.) 

[The  editor  is  indebted  to  Harold  N.  Moyer,  M.  D..  of  Chicago,  formerly 
assistant  physician  to  the  Illinois  Eastern  Ho.spita1  for  the  Insane,  for  the 
following  note  to  the  above  case.  Dr.  Moyer  has  visited  and  studied  the 
workings  of  many  institutions  for  the  insane  in  Europe  and  America,  and 
has  given  much  thought  to  the  subject  of  insanity.  His  opinion  will  doubt- 
less bo  of  interest  to  the  profession  from  a  medico-legal  standpoint. —  Ed.] 

Note. — (A)  The  view  here  taken,  that  a  person,  to  be  held  responsible, 
must  know  the  nature  of  the  act,  and  must  also  have  the  toill  and  mental 
[Mwers  to  do  or  not  to  do  it,  is  in  exact  accord  with  the  views  of  those  who 
have  had  the  largest  opportunities  in  observing  the  workings  of  the  mind  of 
the  insane.  Great  light  is  thrown  upon  these  cases  by  studying  the  conduct 
of  the  insane  as  a  whole.  Those  acts  which  have  little  or  no  ethical  signifi- 
cance are  frequently  of  this  character,  and  in  those  cases  our  judgment  is 
not  biased  by  possible  motive.  The  doctrine  held  by  the  higher  court  — 
that  it  would  be  dangerous  to  society  to  admit  that  a  person  might  do 
wrorg  against  his  will ;  that  expediency  is  to  be  the  rule  of  action  in  these 
cases  —  seems  monstrous.  Is  a  man  to  be  convicted  of  crime,  for  which  he  is 
insane  and  irresponsible,  for  the  good  of  society?  This  view  is  certainly 
opposed  to  the  spirit  of  the  law  and  justice.  The  question  is  as  to  the  fact  — 
not  as  to  expediency  or  inexpediency  of  admitting  it  —  may  an  individual 


i 


:^m 


318 


AMERICAN  CRIMINAL  REPORTS. 


commit  crime  tlio  natiiro  of  which  he  fully  recognizes  while  laborinpf  under 
Buch  a  defect  of  tlie  will  that  ho  is  unablo  to  resist  the  morbid  iin[)ul.so?  Wo 
think  that  even  a  suporficial  study  of  lunatics,  as  they  are  and  not  as  they 
are  supposed  to  be,  would  bring  out  many  facts  of  this  kind.  This  uncon- 
trollable impulse,  or  imperative  conception,  is  one  of  the  most  fre(iuent  and 
difficult  symptoms  to  meet  in  caring  for  lunatics.  Given  the  fact,  it  is 
clearly  the  duty  of  the  court  to  .admit  it,  and  to  formulate  such  pr'nciplcs 
that  the  guilty  may  be  jnuiished  and  the  innocent  ijrotecteil. 

(B)  Tiio  theitr}'  of  partial  insanity  as  here  laid  down  —  th;it  a  person  iniiy 
on  ono  subject  or  set  of  subjects  be  insane  aiid  irresponsible,  and  oji  all 
others  he  sane  and  resi)onsible — cannot  be  so  readily  adniitled.  Color  is 
lent  to  this  view  113-  the  fiict  that  all  insanities  in  which  tiiere  is  not  absolnte 
imbecility  or  incoherence  always  assume  a  cert.iin  form  and  direction. 
There  is  always  a  set  of  ideas  in  which  the  defect  is  more  marked.  It  will 
bo  seen  from  this  that  in  all  cases  where  there  is  not  complete  overthrow  of 
the  mind  we  hiive  a  more  or  less  "partial"  derangement;  but  this  is  not 
the  sense  in  which  it  is  here  used.  Ciises  have  been  recorded,  in  wiiich 
there  seems  to  exist  but  a  single  delusion;  but  the  difliculty  in  fixiufj;  the 
responsibility  for  crime  not  connected  with  the  particular  delusion,  in  tlies«i 
cases,  would  be  that  reasonjiblo  doubt  which  the  law  raises.  Th.at  a  person 
can  suffer  from  such  a  disease  o''  the  mind  in  one  direction,  with  all  the 
mental  r  np.airment  th.at  the  development  of  a  dehision  imi)Iies,  anti  in  all 
other  directions  bo  sane  beyon<l  a  reasonable  doubt,  is  certainly  opposed  to 
our  present  knowledge  of  mental  physiology  and  j)athology.  A<;:iin  the 
extreme  nuity  of  these  cases —  the  writer,  in  a  somewhat  extensive  exiu'ri- 
ence,  having  seen  but  one.  The  possibility  of  concealed  delusions  and  other 
factors  render  the  theory  of  partial  insanity,  as  here  expressed,  of  limited 
and  doubtful  application. 


T 


People  v.  Casey  and  another. 

(65  Cal.,  260.) 

Instecctions  must  not  assume  that  a  fact  is  proved. 


1,  When  the  constitution  declares  that  "judges  shall  not  charge  juries 

with  respect  to  matters  of  fact,  but  may  ntdte  the  testimony  and  (U;- 
clare  the  law,"  it  is  violated  by  an  instruction  which  declares  that 
"  the  testimony  in  the  case  shotrs''  certain  facts  prejudicial  to  the  de- 
fendant. It  is  for  the  jury  exclusively  to  determine  what  the  testi- 
mony shows. 

2.  Certain  instructions  reviewed,  and  held  erroneous. 

Appeal  from  a  judgment  of  the  Superior  Court  of  Tehama 
County. 


I 


PEOPLE   V.  CASEY. 


319 


A.  W.  (nil I  and  ./.  Rohherson,  for  appellants. 
Attorncii-iieiwrnJ  Mnrshdlly  District- Attorney  Lewis  and  J. 
T.  Matlod',  for  respondent. 

SirAiM'STKix,  J.  It  appears  In'  tlio  record  that  the  court  com- 
menced its  cliarf^e  to  the  jury  with  the  statement  that  the  de- 
fondants  were  char^'ed  witii  the  ci'imc  of  burglary,  and  then 
read  the  statutory  (Usfinition  of  the  crime.  At  the  recjucst  of 
defendants'  counsel  the  court  insti'ucted  the  jury  that,  "■  unless 
you  I  the  jury]  find  that  tiie  defendants,  at  the  time  they  en- 
tered the  house  referred  to,  had  in  their  minds  the  intent  to 
commit  larceny,  you  must  find  them  not  guilty.  To  constitute 
a  crime  there  must  be  a  union  of  evil  intent  and  evil  act." 
Some  other  instructions  were  given,  after  whicli  the  court 
"live  the  following:  "  The  testimony  in  the  case  shows  that 
the  defendants,  after  they  had  taken  the  ])roperty  to  Thomp- 
son's, and,  as  Thom])son  stated,  endeavored  to  dispose  of  it, 
tliat  they  denied  ever  having  seen  the  ])roi»erty  before."  This 
is  in  clear  violatioti  of  that  clause  of  the  constitution  which 
(lechires  that '"judges  shall  not  charge  jui-ies  with  respect  to 
matters  of  fact,  but  may  sfiif,/  ilte  fextimoni/  and  declare  the 
law."  To  xt((f<'  the  testimony  is  (m(!  thing;  to  declare  what 
it  sihon\s  is  anotlier  and  very  ditferent  thing.  It  is  for  the  jury 
exclusively  to  determine  what  the  testimony  sJxnos. 

After  the  jury  had  been  out  four  hours  they  returned  into 
court  and  requested  further  instructions.  The  court  then  in- 
structed them  that  "Walbridge  testified  that  the  quilts  were 
his,  and  were  in  the  Tnion  hotel  the  day  before  they  were 
missed."  The  court  was  in  error.  "Walbridge  so  testified  as  to 
one  of  the  quilts  only.  lie  said  he  could  not  swear  to  the 
other  two;  they  looked  like  tiie  ones  he  had;  he  could  not 
swear  to  them.  If  it  were  clear  to  our  minds  that  this  error 
could  not  have  prejudiced  the  defendants,  we  might  disregard 
it;  but,  as  we  view  the  case,  they  may  have  been  prejudiced  by 
it.  If  all  three  of  the  quilts  had  been  positively  identified  by 
Walbridge  as  his,  and  as  having  been  in  his  hotel,  the  evidence 
would  be  somewhat  stronger  against  the  defendants  than  it 
now  is.  As  the  case  now  stands,  it  does  not  positively  appear 
to  whom  t\vo  of  the  quilts  belonged,  or  that  they  were  taken 
from  the  house  of  AValbridge.  Therefore,  the  testimony  of 
Walbridge,  as  stated  by  the  court,  is  somewhat  stronger  against 


mmm 


320 


AMERICAN  CRIMINAL  REPORTS. 


the  defendants  than  it  was  as  given  by  Walbridge.  The  court 
at  the  same  time  instructed  the  jury  that  "if  the  defendants 
took  tlie  quilts  between  sunset  and  sunrise  tliey  committed 
burglary  in  the  first  degree."  The  only  question  which  can 
arise  in  regard  to  this  is  whether  the  jury  must  not  be  pre- 
sumed to  have  understood  bv  it  that  if  the  defendants  entered 
the  house  mentioned  in  the  indictment  between  sunset  and  sun- 
rise, and  stole  the  quilts  mentioned  in  the  indictment  from  said 
house,  they  committed  burglary  in  the  first  degree;  in  otlior 
words,  that  the  jury  connected  this  instruction  with  those 
wliich  had  been  previously  given.  Possibly  thoy  did ;  but  wo 
cannot  base  a  presumption  on  a  bare  possibility.  The  court 
made  no  reference  to  anvthinji:  which  had  •'one  before.  The 
instruction  as  given  is  witliout  (lualificaticm,  and  we  tliink  it 
would  be  unsafe  to  assume  tliat  the  jury  understood  it  other- 
wise. If  the  court  had  instructed  the  jury  that  "if  the  de- 
fendants entered  the  liouse  lietwoen  sunset  and  sunrise  they 
committed  burglary  in  the  first  degree,"  the  same  presumption 
might  he  invoked  to  sustain  it.  It  miglit  then  he  said  that  tlic 
jury  must  be  presumed  to  have  supj)lied  the  defects  and  omis- 
sions l)y  the  same  process  \-,  hicii  it  is  claimed  they  supplied 
tliose  in  the  instruction  e.\cej)ted  to. 

Tliese  constituted  the  only  substantial  errors  disclosed  by  tli<' 

record  us  we  view  it. 

JiN/(/>ih'»f  iiiul  order  revcr-'^i'il. 

McKiNSTRV,  J.,  Thornton,  J.,  and  Mokkison,  C.  J.,  concurred. 

Ivoss,  J.  I  concur  in  what  is  said  by  Mr.  Justice  SirAui'STKi.N 
in  regard  to  the  first  instruction  set  out  in  his  opinion,  and  in 
the  judgment. 


Hackett  v.  Pkoim.k. 

(8  0)lo..  UOO.) 

Instructions:  When  winkadiiuj. 

Recommendation  to  mercy  where  judge  has  no  discretion.—  Where 
the  law  gives  a  ,jinig«  no  discretion  in  passing  sentence  upon  a  con- 
victed prisoner,  it  is  misleading  to  instruct  the  Jury  that  they  can  recom- 
mend the  prisoner  to  the  mercy  of  tht>  court ;  tending  to  cause  them 
to  Iwlieve  that  they  may  in  this  manner  reduce  the  degree  of  the  crime 
charged,  and  the  punishment  inflicted. 


m 


HACKETT  V.  PEOPLE. 


321 


Error  to  District  Court  of  Clear  Creek  County. 

Post  t6  Coulter  and  J.  W.  MnUaliey,  for  plaintiff  in  error. 
T.  II.  Thomas,  attorney-general,  for  defendant  in  error. 

ITEr.M,  J.  Plaintiff  in  error  was  tried  and  convicted  upon  an 
indictment  for  murder.  lie  is  now,  and  has  been  for  upwards 
of  five  and  one-half  years  last  past,  in  the  penitentiary  under 
a  sentence  of  imprisonment  for  life.  Several  errors  are  as- 
signed, but  we  deem  it  unnecessary  to  consider  any  save  two. 
The  jury,  after  deliberating  for  a  considerable  length  of  time, 
and  being  brought  into  coui't  at  tlieir  own  request,  propounded 
the  following  question:  "Can  the  jury  indorse  on  the  verdict 
a  recommendation  for  merc}?^?"  To  wliich  question  the  court 
answered  by  a  written  instruction  that  tliey  could  indorse  such 
recommendation  upon  their  verdict  should  they  desire  so  to  do. 
Thereupon  they  retired,  and  soon  after  returned  a  verdict  of 
guilty  in  manner  and  form  as  cliarged  in  the  indictment.  They 
also  embraced  in  such  verdict  the  following :  "  We,  the  jury, 
recommend  the  defendant  to  the  mercy  of  the  court."  Thus 
it  a]ipears  that  some  of  the  jurors  were  opposed  to  a  conviction 
for  the  grade  of  crime  finally  found  in  their  verdict,  and  that 
they  only  consented  thereto  ujwn  condition  that  the  recom- 
mendation for  mercy  be  incorporated.  They  must  have  been 
led  to  suppose,  from  the  court's  answer  to  their  question,  that 
this  might  have  weight  in  mitigating  the  severitv  of  the  sen- 
tcnce  to  be  pronounced.  Any  other  explanation  of  the  pro- 
ceedings would  be  absurd;  and  it  must  be  assumed  that  without 
such  belief  the  verdict,  as  returned,  would  not  have  been  agreed 
upon.  Yet,  as  the  law  then  stood,  the  court  was  powerless  to 
hoed  their  suggestion.  Upon  a  verdict  in  this  form,  it  was  his 
duty  to  pronounce  a  sentence  of  imprisonment  for  life.  The 
law  fixed  the  penalty,  and  he  couUl  not  subtract  a  single  day. 
lie  must  either  set  the  verdict  aside  and  order  a  new  trial,  or 
enter  the  judgment  fixed  by  the  statute.  The  instruction  men- 
tioned was,  therefore,  clearly  misleading,  and,  under  the  cir- 
nuiistances,  a  fatal  error. 

But  we  reverse  the  judgment  in  this  case  willingly  for  another 

reason.    Surprising  as  the  fact  may  be,  it  is  nevertheless  true, 

that  the  verdict  was  not  warranted  b\'  the  evidence.    In  the 

light  of  all  the  testimony  contained  in  the  abstract  before  us, 

Vou  V— 81 


IW 


322 


AMERICAN  CRIMINAL  REPORTS. 


manslaughter  is  certainly  the  highest  grade  of  crime  for  which 
the  accused  ought  to  have  heen  convicted  lie  asserts  tliat  the 
shooting  was  purely  accidental.  One  witness  testifies  that  he- 
fore  death  deceased  declared  to  him  that  tlie  shooting  "  was  all 
an  accident."  A  witness  for  the  state  says  that  deceased  used 
the  following  language  after  receiving  the  fatal  wound :  "Do 
try  to  take  Pat  (meaning  Hackett)  away  from  me  out  of  tlie 
cahin.  Tell  him  I  said  it  was  an  accident."  But,  discardinj; 
entirely  the  accident  theory,  the  evidence,  at  most,  sustains 
only  the  conclusion  that  the  fatal  shot  was  fired  in  a  sudiU'ii 
heat  of  passion,  during  a  (h'unken  brawl  between  companions; 
deceased  having  first  choked  Hackett,  thrown  him  on  the  bed, 
and  otherwise  maltreated  him.  It  is  deemed  unnecessary  to 
give  a  description  of  the  atfray  at  lengtli. 
The  judgment  is  reversed,  and  the  cause  remanded. 


Common WK A i.Tii  v.  Baiiti.f.v. 

(138  Mass.,  181.) 

Intoxicating  liquors:  Indictment, 

Insufficiency  of  complaint.— A  complain  „  allcginf;  tliat,  at  a  time 
and  place  named,  tlie  defendant  did  "  knowlii;;ly  permit  a  certain  toiu- 
ment  tliere  situate,  which  was  then  and  there  under  tlie  control  of  said  " 
defendant,  "to  be  unlawfully  used  for  the  illegal  siile  and  keei)iii^' 
of  intoxicating  liquors  tlierein,"  is  insufficient  under  the  statute. 

W.  Clifford^  for  the  defendant. 

E.  J.  Shennan,  attorney -general,  for  the  commonwealth. 

■MoRTox,  C.  J.  The  substantive  allegations  of  the  comi)laint 
in  this  case  are  that  INIartin  Bartley,  the  defendant,  at  the  time 
named,  at  New  Bedford,  did  "  knowingly  permit  a  certain 
tenement  there  situate,  which  was  then  and  there  under  tlie 
control  of  said  Martin  Bartley,  to  be  unlawfully  used  for  the 
illegal  sale  and  keeping  of  intoxicating  li(jiiors  therein." 

This  was  intended  to  be  a  comi)laint  under  tlie  Bub.  Stats., 
ch.  101,  sec.  0.  This  section  ajiplies  to  a  person  Avho,  being  the 
owner  or  having  the  control  of  a  building  or  tenement,  know- 


COMMONWEALTH  v.  UHRIG. 


323 


inMv  lets  it  or  permits  it  to  be  used  for  the  illegal  purpose 
named  by  a  tenant  holding  under  him. 

It  was  intended  to  reach  the  case  of  a  landlord  who,  under 
the  preceding  section,  has  the  right  to  make  entry  upon  the 
])reinises  and  prevent  the  illegal  use;  and,  by  construction,  it 
implies  that  the  building  or  tenement  must  be  used  for  the 
illegal  ])urpose  by  some  third  person  holding  under  the  land- 
lord. The  complaint  does  not  aver  that  the  tenement  was 
used  by  any  person  named,  or  by  any  person  unknown  and 
other  than  the  defendant.  All  the  allegations  would  be  met 
by  proof  that  the  defendant  permitted  his  servant  or  agent  to 
use  the  tenement  for  the  illegal  sale  and  keeping  of  intoxicat- 
ing liquors,  in  which  case  he  would  be  punishable  under  the 
seventh  but  not  under  the  ninth  section  of  the  statute. 

We  are  of  opinion  that  this  complaint  lacks  the  certainty 

required  in  criminal  pleadings,  and  is  insufficient.     Co)n.  v. 

Moore,  11  Cush.,  (!00. 

Comjdaint  quashed. 


Commonwealth  v.  Uiirig. 

(138  Mass.,  492.) 

iNTOXiCATixa  LIQUORS :  Sale  by  servant  —  Intent. 

nriLTV  KXOWLEDUE  is  not  essential  to  tiie  offense  of  unlawfully  selling 
intoxicating  liijuors,  and  wlioever  has  a  license,  whether  he  conducts 
the  business  j)ers(jnally  or  by  his  agent,  is  bound  at  his  own  peril  to 
keep  within  the  terms  of  it. 

Indictment  for  keeping  and  maintaining  a  common  nuisance. 

The  defendant  requested  the  judge  to  instruct  the  jury  as 
follows:  "If  the  defendant  did  not  intend  to  violate  his 
licenses,  or  either  of  them,  and  was  not  aware  that  either  he 
or  his  servant  was  doing  so.  he  cannot  be  convicted  under  this 
indictment,  although  he  or  his  servant  did  ignorantly  and  un- 
intentionally nuiko  a  sale  to  a  person  to  whom  he  was  not 
authorized  l)y  said  licenses,  or  either  of  them,  to  make  such 
sale,  upon  proof  of  that  sale." 

The  judge  refused  to  give  this  instruction.     The  jury  re- 


! 


324 


AMERICAN  CRIMINAL  REPORTS. 


turned  a  verdict  of  guilty,  and  the  defendant  alleged  excep- 
tions. 


C.  Rohinson,  Jr.,  for  the  defendant. 

11.  N.  Shepard,  assistant  attorney-general,  for  the  common- 
wealth. 

Devens,  J.  That  the  defendant  was  not  entitled  to  have  the 
instruction  requested  given  in  the  form  presented  is  clear,  as 
it  would  include  a  case  where  the  defendant  was  ignorant  of 
the  law,  and  thus  violated  it  unintentionally.  ]iut,  if  not  open 
to  this  very  obvious  criticism,  it  is  objectionable  on  otlior 
grounds.  It  makes  no  distinction  between  the  master  and 
servant,  and  treats  the  act  of  making  an  illegal  sale,  if  done 
by  either  unintentionally,  as  involving  no  criminal  responsibil- 
ity. Guilty  knowledge  that  one  is  acting  in  violation  of  law 
is  not  essential  to  the  offense  of  unlawfully  selling  intoxicutinw 
liquors,  and  whoever  has  a  license,  whether  he  conducts  the 
business  personally  or  by  servants,  is  bound  at  his  own  peril 
to  keep  within  the  terms  of  it.  Com.  v.  llallett,  103  Mass.,  4r)2; 
Com.  V.  Wentworth,  118  Mass.,  441. 

Had  the  instruction  been  given  as  requested,  it  would  have 

required  the  jury  to  find  that,  if  the  defendant  himself,  who 

was  the  master  of  the  house,  sold  liquor  in  violation  of  law  and 

of  his  license,  but  ignorantly  and  unintentionally,  he  could 

not,  upon  such  proof,  be  convicted  of  maintaining  a  nuisance, 

which  is  manifestly  erroneous. 

Exceptions  overruled. 


State  v.  Fleming. 

(33  Kan.,  588.) 

iNTOXic.vTiNa  LIQUORS:  Sale  by  physician. 

A  physician,  liaving  no  permit  therefor,  cannot,  under  the  statute,  law- 
fully fiirniah  intoxicating  liquor  as  a  medicine  to  a  patient,  who  is 
actually  aick,  and  charge  and  receive  pay  for  the  same. 


Appeal  from  Cowley  District  Court. 


STATE  V.  FLEMING. 


325 


The  following  complaint  or  information,  omitting  court  and 
title,  was  filed  in  the  district  court  of  Cowley  county : 

"  In  the  name,  by  the  authority,  and  in  behalf  of  the  state  of 
Kansas,  I,  F.  S.  Jennings,  county  attorney  of  Cowley  county, 
Kansas,  come  now  here  and  give  the  court  to  understand  and 
be  informed  that  John  Fleming,  at  and  within  the  county  of 
Cowley,  in  the  state  of  Kansas,  and  at  and  in  a  one-story  frame 
building,  situated  on  lot  No.  10,  iti  block  No.  128,  in  the  city 
of  Wintield,  in  said  county  and  state,  and  on,  to  wit,  the  27th 
day  of  January,  1884,  the  said  John  Fleming,  then  and  there 
being  a  physician  and  following  his  profession  as  a  business, 
and  having  heretofore,  to  wit,  on  the  5th  day  of  May,  1881, 
duly  filed  with  the  probate  judge  of  said  Cowley  county,  Kan- 
sas, tlie  affidavit  required  by  section  3  of  an  act  entitled  '  An 
at't  to  prohibit  the  manufacture  and  sale  of  intoxicating  liquors, 
except  for  medical,  scientific  and  mechanical  purposes,  and  to 
regulate  the  manufacture  and  sale  thereof  for  such  excepted 
purposes,'  approved  February  19,  1881,  and  which  took  effect 
May  1,  A.  D.  1881,  which  said  affidavit  was  theretofore  duly 
sid)scril)ed  and  sworn  to  by  the  said  John  Fleming,  did,  in 
good  faith,  make  a  verbal  prescription  for  one  W.  C.  McDon- 
ald for  one  pint  of  whisky,  tlie  said  W.  C.  McDonald  then  and 
there  being  the  patient  of  the  said  John  Fleming,  and  being 
then  and  there  actually  side,  and  whisky  being  then  and  there 
a  necessary  medicine  and  remedy  for  the  said  W.  C.  McDonald 
in  his  then  condition ;  and  the  said  John  Fleming  did  then  and 
there  unlawfully  furnish  and  deliver  to  the  said  W.  C.  McDon- 
ald the  one  pint  of  whisky  prescribed  by  the  said  John  Flem- 
ing for  tlie  said  W.  C.  McDonald,  as  aforesaid,  and  did  then 
and  there  receive  from  the  said  W.  C.  McDontild  $1  in  pay- 
ment  for  the  said  one  pint  of  whisky  so  furnished  and  delivered 
as  aforesaid ;  the  said  John  Fleming  not  having  first  obtained 
and  not  then  having  a  druggist's  or  manufacturer's  permit 
from  the  probate  judge  of  Cowley  county,  Kansas,  as  provided 
by  law  for  the  sale  of  intoxicating  liquors,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  state  of  Kansas.'* 

On  January  30, 1884,  the  defendant  filed  his  motion  to  quash 
the  complaint  or  information,  u])on  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  public  offense.    On  Janu- 


f 


320 


AMERICAN  CRIMINAL  REPORTS. 


ary  31,  1SS4,  the  motion  came  on  foi'  hearing,  and  was  sus- 
tained. The  court  rendered  judgment  that  the  defendant  be 
discharged.     The  state  appeals  and  brings  the  case  here. 

F.  S.  Jennings,  county  attorney,  and  M.  G.  Troiq),  for  appcl 
lant. 
Henry  E.  Asp,  for  appellee. 

lIoRTON,  C.  J.  The  principal  question  in  this  case  is  whotlior 
a  physician,  having  no  druggist's  permit,  can,  under  the  stat- 
ute, lawfully  furnish  intoxicating  liijuor  to  his  patient,  who  is 
actually  sick,  needing  the  liquor  as  a  medicine,  and  receive  pay 
therefor?  It  is  insisted — Fint,  that  the  administering  oi! 
liquors  as  a  medicine  to  a  patient  by  a  physician,  who  rccoivos 
pay  for  the  same,  cannot  properly  be  denominatcul  a  sale; 
second,  that  it  was  not  the  intention  of  the  legislature,  in  pass- 
ing the  prohibitory  liquor  law,  to  interdict  a  physician  from 
administering  intoxicating  liquor,  in  good  faith,  to  his  patient, 
who  is  actually  sick,  and  charging  for  such  liquor,  AVe  think 
the  information  states  all  the  requisites  of  a  sale.  The  physi- 
cian, as  the  seller,  gave  and  passed  over  to  his  patient,  tlio 
buyer,  the  intoxicating  liquor  in  exchange  for  $1,  and  the 
patient  acce))ted  the  liquor,  and  not  only  agreed  to  pay  for  it, 
but  did  actually  pay  its  price.  2  J'ouv.  Law  Diet.,  000.  In  the 
case  of  Schiiifncr  v.  State,  8  Ohio  St.,  G-i3,  it  d(jes  not  appear 
that  the  physician  charged  or  received  com))ensation  for  the 
liquors  administered  by  him.  If,  however,  it  was  the  intention 
of  the  court  delivering  the  opinion  in  that  case  to  decide  that 
tiie  .administering  of  intoxicating  liquors  to  a  patient  by  a  phy- 
sician, who  charges  and  receives  pav  for  the  same,  is  not  a  sale 
of  li(]Uors  by  the  physician  to  the  patient,  we  cannot  assent 
thereto.  Further,  we  are  of  the  opinion  that  under  the  statute 
a  ])hysieian  cannot  sell,  even  for  medical  purposes,  intoxicating 
liquors  Avithout  a  druggist's  permit. 

The  amendment  to  article  5  of  the  constitution  ordains: 
"The  manufactui'e  and  sale  of  intoxicating  li(piors  shall  be  for- 
ever prohibited  in  this  state,  except  for  medical,  scientific  and 
mechanical  i)urposes."  The  legislature  adopted,  in  ISSl,  a 
statute  which  attempts  to  regulate  the  sale  of  intoxicating 
liquors  for  the  excepted  purposes.     Laws  1881,  ch.  128.     !Scc- 


STATE  V.  FLEMING. 


327 


tion  2  of  this  statute  reads:  "It  shall  be  unlawful  for  any 
person  or  persons  to  sell  or  barter  for  medical,  scientific  or  me- 
chanical purposes,  etc.,  without  having  procured  a  druggist's 
])ennit  therefor  from  the  probate  judge  of  the  county,"  etc. ; 
and  the  section  further  on  provides  that  the  probate  judge  is 
authorized  to  grant  such  permit  to  certain  persons,  who  "  can 
be  intrusted  with  the  responsibility  of  selling  said  liquors  for 
the  purpose  aforesaid  in  the  manner  hereinafter  provided." 
"  The  manner  hereinafter  provided  "  is  explained  in  section  4. 
Any  druggist  having  a  permit,  etc.,  may  sell  for  medical  pur- 
l)oses  only  upon  the  written  or  printed  prescription  of  a  prac- 
ticing physician,  duly  signed  by  such  physician,  and  Avho  has 
made  and  filed  the  aHidavit  mentioned  in  the  preceding  section. 
Section  7  uses  this  language :  "  Any  person,  Avithout  taking 
out  and  having  a  permit  to  sell  intoxicating  liquors,  etc.,  shall 
be  deemed  guilty  of  a  misdemeanor." 

The  statute  is  so  plain  and  direct  that  we  think  the  question 
is  settled  thereby  that  the  legislature  did  not  intend  to  exempt 
physicians  from  its  operation.  If  the  legislature  had  intended 
to  exempt  physicians  it  could  easily  have  done  so.  The  method 
and  the  means  of  regulating  the  sale  of  intoxicating  liquors 
for  tlie  excepted  ])urposes  mentioned  in  the  constitution  must 
be  referred  to  the  wisdom  and  discretion  of  the  legislature. 
The  various  provisions  of  the  enacted  statute  all  tend  to  show 
that  the  legislature  had  no  intention  to  permit  physicians,  drug- 
gists or  any  otiier  person  to  sell  intoxicating  liquors  for  the 
excepted  purposes  "  without  first  having  procured  a  druggist's 
[leriuit  therefor  from  tlie  probate  judge."  Jtci  lex  scr/'jjta  ed  — 
so  the  law  is  written.  A^e  cannot  make  the  law,  nor  by  judi- 
cial construction  cliange  or  modify  its  terms  so  as  to  legalize 
sales  which  are  exjn-essly  prohibited.  Woods  v.  State,  30  Ark., 
3C;  Wrujht  v.  J\'op/c.  lul  111.,  120;  State  v.  JfaU,  39  Me.,  107; 
State  V.  Bi'ou'/i,  31  Me.,  523;  Commonioealth  v.  Sloan,  58  ]\[ass. 
(4  Cush.),  52.  Counsel  refer  to  the  statutes  of  several  states 
forbidding  the  sale  of  intoxicating  liquors,  which  contain  no 
exceptive  provisions,  and  cite  decisions  from  those  states  to 
the  effect  that  the  legislatures  of  those  states  must  be  presumed 
to  liave  left  the  necessity  of  saving  life  and  curing  the  sick  to 
operate  as  an  inq)lic'd  exception  to  the  general  terms  of  the 
statutes.     T/io7na^it>vn  ?*.  State,  15  Ind.,  -t-iO;  State  v.  Jlltf/iell, 


li: 


323 


AMERICAN  CRIMINAL  REPORTS. 


2S  Mo.,  5C3;  State  v.  Larrimore,  19  Mo.,  391;  State  v.  Wmy,  72 
N.  C,  253.  Some  of  these  cases  are  in  conflict  with  the  pre- 
vious decisions  of  tliis  court.  While  the  old  dram-shop  act, 
regulating  the  sale  of  into.xicating  liquors,  was  in  force,  this 
court  decided  that  druggists  had  no  right  to  sell  intoxicating 
liquors,  even  for  medical  purposes,  without  license.  City  tyf 
Sallna  v.  Sdtz,  IG  Kan.,  113.  But  the  decisions  cited  by  the 
defendant  are  not  applicable  to  the  present  case,  because  there 
is  embodied  in  the  statute  of  this  state  a  speciflc  provision 
made  for  the  sale  of  intoxicating  liquors  for  medical  purposes, 
and  the  statute  is  bristling  all  over  with  provisions  tending  to 
show  that  it  was  in  the  mind  of  the  legislature,  at  the  time  the 
statute  was  adopted,  to  forbid  physicians  and  all  other  persons 
from  selling  or  bartering  intoxicating  liquors  for  medical  pur- 
poses without  lii'st  having  procui'ed  a  permit.  Physicians  are 
specially  referred  to  in  the  statute,  and  are  prohibited  from 
even  prescribing  intoxicating  liquor  as  a  medicine  to  a  patient, 
unless  they  make  and  file  with  the  probate  judge  of  the  county 
where  they  jn'actice  their  profession  an  affidavit  in  the  terms 
prescribed  by  the  statute.  Section  3,  ch.  128,  Laws  ISSI. 
Again  said  section  provides : 

"  Any  physician  who  is  regularly  engaged  in  the  practice  of 
his  profession  as  a  business,  and  who  in  cases  of  actual  sickness 
shall  deem  any  of  the  liquors  mentioned  in  the  first  section  of 
this  act  necessary  for  the  health  of  his  patient,  may  give  such 
patient  a  written  or  printed  prescription  therefor,  lint  no 
such  prescription  shall  be  made  or  given  except  in  case  of 
actual  sickness,  and  when,  in  the  judgment  of  such  physician, 
the  use  of  intoxicating  liquor  is  necessary  as  a  remedy.  .  .  . 
Every  physician  or  person  assuming  to  act  as  such,  wlio  shall 
make  a  prescription  for  any  intoxicating  litjuors  without  hav- 
ing made  and  filed  the  allidavit  in  this  section  i)rovided,  or 
who  shall,  after  making  and  filing  such  affidavit,  violate  any 
of  the  provisions  of  this  act,  shall  be  deemed  guilty  of  a 
misdemeanor." 

It  is  very  true  that  the  evil  sought  to  be  remedied  by  the 
statute  is  the  use  of  intoxicating  li(iuors  as  a  beverage,  and 
that  this  purpose  interprets  the  law.  lid(>;clcathuj  Lienor 
Cases,  25  Kan.,  751.  But  the  idea  of  prohibition  as  embraced 
in  the  statute  is  the  absolute  destruction  of  the  use,  as  a  bev- 


COMMONWEALTH  v.  PATTERSON. 


329 


evagc,  of  intoxicating  liquors.  To  accomplish  this  the  legis- 
lature has  seen  fit  to  throw  severe  restrictions  around  the 
administering  of  liquors  oven  as  a  medicine.  It  has  attempted 
thereb}"^  to  prevent  the  excepted  sales  from  becoming  the  ways 
and  means  of  rendering  the  statute  abortive.  AVhether  the 
legislature  has  acted  wisely  it  is  not  for  us  to  say ;  for  the  law 
tlie  legislature,  and  not  the  courts,  is  responsible.  It  is  clearly 
indiscreet  to  prosecute  transactions  like  the  one  charged  in  the 
complaint ;  but  the  defendant  had  no  right  to  administer  liquor 
as  a  medicine  contrary'  to  the  provisions  of  the  statute. 

The  ruling  and  judgment  of  the  district  court  will  be  re- 
versed, and  the  cause  remanded  for  further  proceedings  in 
accordance  with  the  views  expressed. 

(All  the  justices  concurring.) 


Commonwealth  v.  Patterson. 

(138  Mass.,  498.) 
Intoxicatinq  uquors:  Instructions. 

Single  sale. —  On  the  trial  of  a  complaint  for  keeping  and  maintaining 
a  tenement  nsod  for  the  illegal  sale  and  illegal  keeping  of  intoxicating 
liquors,  the  judge  instructed  the  jurj%  that,  if  the  defendant  was 
the  ])roprielor  of  the  sakK)n  and  made  either  of  the  two  sales  testified 
to,  they  must  return  a  verdict  of  guilty.  Held,  erroneous ;  as  a  build- 
ing cannot  be  said  to  bo  "used"  for  the  illegal  sale  of  intoxicating 
liquors,  nor  can  the  proprietor  be  said  to  "  keep  or  maintain  such  com- 
mon nuisance"  within  the  meaning  of  the  statute,  on  the  strength  of 
a  single  sale. 

/.  W.  Jiichanlsoii,  for  the  defendant. 

JJ.  jV.  Shepanl,  assistant  attorney-general,  for  the  comnion- 
Avealth. 

Holmes,  J.  The  jury  Avere  instructed  that,  if  the  defendant 
was  proprietor  of  the  saloon,  and  made  either  of  the  two  ille- 
gal sales  that  were  testified  to,  they  must  return  a  verdict  of 
guilty.  This  went  too  far.  For,  even  if  a  single  sale  was  suf- 
ficient evidence  to  warrant  a  conviction  on  this  complaint,  it 
certainly  did  not  of  itself  constitute  the  offense  set  forth,  or 


If 


:| 


330 


AMERICAN  CRIMINAL  REPORTS. 


amount  to  more  than  evidence  for  tlio  jury  on  whicli  they 
might  convict,  A  building  cannot  be  said  to  l)o  "  used  "  for 
the  illegal  sale  of  intoxicating  liquors,  within  the  moaning  of 
the  Pub.  Stats.,  chapter  101,  section  G,  which  makes  it  a  nui- 
sance, nor  can  the  jjroprietor  be  said  to  "  keep  or  maintain 
such  common  nuisance  "  withii'  section  7,  on  the  strength  of  a 
single  casual  sale,  made  without  premeditation,  in  the  course 
of  a  lawful  business.  Not  only  do  the  words  "  used  "  and 
"  keep  or  maintain  "  import  a  certain  degree  of  permanence, 
but  the  same  idea  is  usually  a  part  of  the  conception  of  a  nui- 
sance. 

Exceptions  sustained. 


COMMONWKALTU    V.    SlNCLAIK. 
(138  Miias.,  493.) 
Intoxicatin'O  liquous:  Evidence  of  other  sales  —  Principal  and  agent, 

1.  Othkr  sali«  made  by  defendant.— -Evidence  of  otiior  sales  made  I)y 

the  defendant  on  the  same  occasion  as  tliat  cliarged  in  the  comphiint 
is  admissible. 

2.  Principal  and  agent  — Power  to  make  sale,  etc.— On  llie  trial  of 

an  innholdei's  clerk  for  an  unlawful  sale  of  intoxicating  liijuors,  the 
judge  instructed  the  jury  "  that,  if  the  defendant  was  not  in  the  room 
with  the  proprietor,  and  the  door  was  lock«Hl  between  him  and  tlie 
proprietor,  and  the  defendant  took  orders  for  intoxicating  liiiuors  ami 
delivered  the  liquor  to  the  party  ordering  it.  and  took  pay  therefor,  it 
was  a  sale  by  the  defendant."  Held,  not  erroneous;  that  it  wiis  for 
the  defendant  to  re(iuest  an  instruction  based  upon  the  theory  that  he 
was  acting  only  as  a  subordinate,  without  power  to  make  a  sale  or  to 
determine  whether  a  sale  should  bo  made. 


/.  W.  Tlichardmn,  for  the  defendant. 

//.  N.  Shejyard,  assistant  attorney-general,  for  tlie  common- 
wealth. 

Devkns,  J.  1.  The  evidence  of  other  sales,  made  on  the 
same  occasion  as  that  when  the  facts  testified  to  occurred, 
tending  to  show  a  sale  to  a  ])erson  unknown,  was  admissible. 
Proof  of  such  sales  might  aid  in  showing  that  the  transaction 
relied  on  by  the  prosecution  was  a  sale,  by  proving  the  busi- 
ness then  and  there  conducted. 


'i,  X 


COMMONWEALTH  v.  SINCLAIR. 


881 


2.  The  instruction  Avas  given,  "that,  if  the  defendant  was 
iK^t  in  the  room  with  the  proprietor,  and  tlie  door  was  locked 
between  him  and  tlie  proprietor,  and  the  defendant  took  orders 
fpr  intoxicating  liquors  and  delivered  the  liquor  to  tlie  party 
ordering  it,  and  took  pay  therefor,  it  was  a  sale  by  the  defend- 
ant." This  the  defendant  contends  to  bo  erroneous,  on  the 
ground  that,  if  the  defendant  gave  the  order  for  liquors  to  an 
agent  of  Ih'ighani,  the  defendant's  employer,  in  the  room  with 
the  defendant,  and  the  agent  decided  whether  or  not  to  fill  the 
order,  and  tlie  price  to  be  paid,  it  was  not  a  sale  by  the  defend- 
ant, but  a  sale  by  lirigham  or  his  agent.  Assuming  the  law  to 
he  as  contended  by  the  defendant  the  instruction  does  not  hold 
otiierwise,  and  does  not  deal  with  any  such  state  of  facts  as 
that  supposed  in  this  argument.  It  undertakes  to  deal  only 
with  the  relation  immediately  existing  between  the  servant  and 
tlie  ])i'oprietor,  and  holds  the  servant  to  be  liable  to  jH'osocution 
wlien  all  the  acts  necessary  to  constitute  a  sale  are  done  by 
liiin  indejicndently  of  the  proprietor,  and  not  under  his  imme- 
diate control.  In  this  view  the  instruction  is  correct.  If  it  is 
deficient,  and  not  all  that  the  case  required,  in  that  it  fails  to 
deal  with  all  tlie  aspects  of  the  case  as  ])resentod  by  the  evi- 
dence, it  was  for  the  defendant  to  have  called  attention  to  this; 
and  to  have  requested  an  instructi<jn  based  upon  the  theory 
that  he  was  acting  as  subordinate  only  to  a  superior  agent  of 
the  proprietor,  who  determined  whether  an  order  should  be 
lilled,  the  price  that  should  be  ]iaid,  and  that  what  was  re- 
ceived from  the  agent  was  delivered  to  the  purchaser,  and  the 
money  paid  therefor  immediately  transmitted  to  the  agent,  so 
that  the  defendant  was  discharging  only  the  functions  of  a 
mere  messenger  or  table-boy,  without  power  to  make  a  sale  or 
to  determine  whether  a  sale  should  be  made,  and  thus  was  in 
no  sense  the  seller,  but  an  intermediary  only  between  the  buyer 
and  the  seller.     Com.  v.  MlUiamfi,  4  Allen,  587. 

No  such  instruction  appears  to  have  been  requested,  although 
on  a  certain  aspect  of  the  evidence  (which  is  but  imperfectly 
disclosed,  as  only  that  relating  to  the  questions  intended  to  be 
raised  is  reported)  such  a  request  might  ])roporly  have  been 
made.  It  is  not  possible  for  a  judge  to  foresee  all  views  of  the 
evidence  which  niay  be  taken.  It  is  the  duty  of  a  party,  who 
deems  a  ruling  or  instruction  necessary  for  the  protection  of 


^^'  f ' 


% 


I 


p'  f 


332 


AMERICAN  CRIMINAL  REPORTS. 


his  interests,  to  call  the  attention  of  the  judge  thereto  by  a 
proper  request,  if  he  would  lay  tlio  foundation  for  an  excep- 
tion. Questions  upon  which  no  rulings  are  asked,  nor  excep- 
tions taken  at  the  trial,  are  not  open  here  for  discussion. 
Draper  v.  Saxton,  118  Mass.,  427;  Ajhcs  v.  McCumher,  121 
Mass.,  85 ;  Goodnoio  v.  Hill,  125  Mass.,  587. 

It  might  be  added,  were  it  desirable  further  to  discuss  the 
point,  that,  for  aught  that  appears  by  the  bill  of  exceptions,  an 
appropriate  instruction  on  this  very  matter  may  have  been 
given.  The  bill  does  not  undertake  to  report  any  instructions 
except  those  given  or  refused  in  answer  to  the  defendant's 

request. 

Exceptions  ovemihd. 


State  v.  Naole. 
(14  R.  I.,  881.) 

iNTOXlCATlNa  LIQUORS :  Indictment  —  Continuando  —Election  —Dill  of  par- 
ticulars—  Discretion  of  court  —  Practice — Special  verdict. 


1.  Indictment  —  Continuando  —  Evidence.— When  an  indictment  clmr^'cs 

an  offense  with  a  eaiitiiiuaiido,  evidence  is  admissible  to  prove  tlic  fm, 
mission  of  the  offense  at  any  time  within  the  period  alleged. 

2.  Same  —  Evidence  when  given  day  is  allecied.— When  an  indi>         .t 

charges  .an  offense  jis  committed  on  a  given  day,  evidence  is  adnn  Ide 
to  i>rove  the  commission  of  lue  offense  either  on  the  given  day  or  on 
any  other  day  before  the  finding  of  the  indictment  and  witiiin  the 
period  of  limitation,  but  only  on  one  day. 

3.  Same  —  Prosecutor  should  specify  the  day  to  which  his  pkoop 

WILL  apply. —  When  an  indictment  charges  an  offense  a.s  committed 
on  a  given  day  and  the  prosecutor  wishes  to  introduce  evidence  of  its 
commission  on  another  day,  he  should  specify  beforehand  the  day  to 
which  his  proof  will  apply,  otherwise  he  will,  by  introducing  evidenc(5 
referring  the  offense  to  one  day,  be  confined  to  that  day. 

4.  Same— When  on  more  than  one  day  prosecittor  should  elect  it.— 

When  an  indictment  cliarged  an  offense  as  committed  on  a  given  day, 
and  evidence  at  the  trial  was  admitted  tending  to  jn-ove  the  commis- 
sion of  the  offense  on  other  days  also,  held,  that  the  juosecutor  should 
have  been  required  to  specify  the  day  on  which  he  would  go  to  the 
jury. 

5.  Bill  op  particulars. —  A  motion  for  a  bill  of  particulars  is  addressed 

to  the  discretion  of  the  court. 


STATE  V.  NAGLE. 


OOO 


0.  SrRrnisE  —  roNTiN'UAN'CE  — Discretion.— A  motion  to  continue  a  caso 
on  account  of  surprise  is  addressed  to  the  (liscretion  cf  the  court,  and 
its  rulings  are  not  revisable  on  a  lull  of  exceptions. 

7.  PRAcricE  —  Special  verdict.— Pub.  Stat.  R.  I.,  cap.  iS04,  sec.  34,  pro- 
viding that  "  in  any  case  the  court  may,  and  upon  the  request  of  either 
party  it  shall,  direct  the  jury  to  return  a  special  verdict  ui)on  an  issue 
suliuiitted  to  the  jury,"  does  not  apply  to  criminal  prosecutions. 


Exceptions  to  the  Court  of  Common  Pleas. 

This  case  was  a  complaint  against  the  defendant,  brought  in 
tlie  justice  court  of  the  town  of  Pawtucket,  for  illegally  keep- 
ing for  sale  intoxicating  liquors  in  said  town,  October  13, 1S83. 
Tiio  defendant,  after  conviction  in  the  justice  court,  appealed 
to  the  court  of  common  pleas.  In  the  latter  court  the  defend- 
ant Ui'ikcd  for  a  bill  of  particulars,  stating  specifically  the  time 
and  i)hice  of  tlie  alleged  illegal  acts,  which  the  state  intended 
to  prove.  The  state  specified  the  place  but  refused  to  specify 
the  time,  claiming  the  right  to  otfer  evidence  as  to  any  day  or 
any  number  of  days  within  two  years  prior  to  the  date  of  the 
complaint.  The  presiding  justice  refused  to  order  a  siiecifica- 
tion  of  the  time  and  the  defendant  excepted. 

In  the  court  of  common  pleas  the  state  offered  evidence  to 
the  jury  of  the  defendant's  guilt  on  October  13th,  and  then  put 
in  evidence  tending  to  show  his  guilt  on  August  11,  18S3,  Sep- 
tember 30,  1883,  and  October  7,  1SS3,  whereupon  the  defend- 
ant asked  for  a  continuance  of  tlie  case,  alleging  surprise.  The 
presiding  justice  refused  the  continuance  and  the  defendant 
excepted.  The  defendant  then  asked  the  court  for  an  order 
directing  the  state  to  elect  upon  which  day  it  would  claim  that 
the  'i»fendant  committed  the  offense.  The  presiding  justice 
refused  this  request  and  the  defendant  excepted.  The  evidence 
as  to  days  other  than  October  13th  was  admitted  against  the 
defendant's  objection,  and  the  defendant  excepted. 

^^  fter  the  evidence  had  been  closed  the  defendant  asked  the 
court  for  an  order  directing  the  jury  to  bring  in  a  special  ver- 
dict as  to  the  day  on  which  the  offense  was  committed.  The 
presiding  justice  refused  the  request  and  the  defendant  ex- 
cepted. 

Pub.  Stat.,  R.  I.,  cap.  20-t,  sec.  3-1,  provides :  "  Tfo  action  shall 
be  defeated  by  the  misjoinder  of  parties,  if  the  matter  in  con- 
troversy can  be  properly  dealt  with  and  settled  between  the 


m 


m 


'  'H 


3?A 


AMERICAN  CRIMINAL  REPORTS. 


l)arties  before  the  court ;  and  the  court  may  order  any  party 
improperly  joined  in  any  action  to  be  stricken  out,  or  may, 
upon  such  terms  as  may  be  proper,  order  any  other  person  to 
be  made  a  party  to  such  action,  and  to  be  summoned  in  to 
answer  thereto ;  and  in  any  case  the  court  may,  and  upon  the 
request  of  either  party  it  shall,  direct  the  jury  to  return  a  spe- 
cial verdict  upon  an  issue  submitted  to  the  jury." 

Samnel  P.  Colt^  attorney-general,  for  plaintiff. 

CJuiiies  E.  Gonnan  and  Ilnyh  J.  Carroll,  for  defendant. 

Duui'KK,  C.  J.  A  motion  for  a  bill  of  particulars  is  a  motion 
addressed  to  tlie  discretion  of  the  court,  and,  us  such,  is  not  ro- 
visable  error  on  a  bill  of  exceptions.  Com.  v.  Cilefi,  1  Gray, 
4G6;  C<nn.  v.  Waoff,  4  Gray,  11;  Chaffee  v.  Sohlan,  5  ^Fich., 
242;  State  v.  Ilaod,  51  ^[e.,  303.  The  first  exception  is,  there- 
fore, overruled.  For  the  same  reason  the  exception  for  the 
refusal  of  the  court  below  to  grant  a  continuance  asked  for  by 
the  defendant  on  the  ground  of  surprise  must  be  overruled. 

The  comi)laint,  dated  October  1!>,  1S83,  charges  the  defend- 
ant Avith  illegally  keeping  intoxicating  liquors  for  sale  on  Oc- 
tober 13,  1883.  On  the  trial  the  state  first  introduced  certain 
testimony  tending  to  prove  the  con^mission  of  the  offense  Oc- 
tober 13.  The  witness  was  then  asked  by  the  prosecution  if 
he  had  been  near  or  at  the  defendant's  premises  before  October 
13.  The  record  shows  that  the  question  was  obj(>cted  to,  al- 
lowed, and  exception  reserved.  Testimony  was  then  introduced 
tending  to  show  the  commission  of  the  offense  on  divers  days 
before  Octol)er  13,  to  wit:  on  October  7,  September  30  and 
August  11.  Thereupon  the  defendant  moved  that  the  prose- 
cution, inasmuch  as  it  had  introduced  testimony  tending  to 
prove  the  commission  of  the  offense  on  several  different  days, 
be  conqK'll«d  to  elect  on  which  day  it  claimed  that  the  defend- 
ant was  guilty  of  the  offense  charged.  The  motion  was  denied 
and  an  exception  reserved. 

An  offense  may  be  charged  to  have  been  committed  either 
on  some  one  particular  day,  or,  if  it  have  continuance,  on  a 
series  of  da^'s,  under  a  contlnnando.  A  ch.arge,  in  tiie  latter 
form,  is  usually  made  by  cliarging  the  commission  on  two 
days,  more  or  less  widely  separated,  the  latter  generally  being 


•T 


STATE  V.  NAGLE. 


535 


designated  as  the  day  of  the  finding  of  the  indictment  or  of 
the  making  of  the  compLaint,  and  on  divers  days  and  times 
between  them.  When  it  is  po  made,  testimony  is  admissible  to 
prove  the  commission  of  the  offense  at  any  time  within  tlie 
period  alleged.  It  has  been  held  that  the  offense  of  illegally 
keeping  intoxicating  liquors  for  sale  may  properly  be  charged 
under  a  contliiuando.  Com.  v.  Snow,  l-t  (iray.  20;  Coi/i.  v.  Chls- 
holm,  103  ^lass.,  213.  When  the  offense  is  alleged  to  have 
been  committed  on  some  one  particular  day,  it  is  well  settled 
that  testimony  may  be  adduced  to  prove  the  commission  either 
on  the  day  mentioned  or  on  any  other  day  before  the  finding 
of  the  indictment  or  the  making  of  the  complaint,  within  the 
period  of  limitation,  but  not  to  prove  the  commission  on  more 
than  one  day.  Coin.  v.  Kellij,  10  Cush.,  O'J;  Wharton  on  Crim- 
inal Evidence,  soc.  103.  AVhen  the  offense  is  charged  as  hav- 
ing been  committed  on  a  particular  day,  and  the  prosecutor 
has  testiiiiony  which  he  wishes  to  introduce  applying  to  other 
days,  it  is  advisable  for  him,  in  order  to  avoid  any  misunder- 
standing, to  s[)ecify  beforehand  the  day  on  which  he  under- 
takes to  [)rove  the  offense.  If  he  neglects  to  do  this,  and 
begins  by  inti-oducing  testimony  which  directh'  tends  to  prove 
the  ciiarge  on  some  particular  day,  he  will  be  held  to  have 
elected  tiiat  day  as  the  day  on  which  ho  is  to  prove  the  offense, 
thougli  he  may  prefer  a  different  <lay.  State  v.  Bates,  10  Conn., 
372 ;  The  Peojilu  v.  Jennesn,  5  Mich.,  305,  327 ;  Stante  v.  Bricket,  1 
Camp.,  473 ;  Sedly  v.  Sittherland,  3  Esp.,  202 ;  Pierce  v.  Picl'- 
cnm,  1(5  ^[ass.,  470.  Applying  these  rules  to  the  case  at  bar,  the 
])rosecution  having  begun  by  submitting  testimony  to  prove  the 
offense  October  13th,  ought  to  have  been  confined  to  that  day. 
We  do  not  mean  by  this  that  no  testimony  relating  to  other 
davs  was  admissible,  because  testimonv  relating  to  other  davs 
may  have  had  a  tendency  to  prove  the  offense  on  October  13th, 
but  only  that  testimony  was  not  admissible  to  prove  the  offense 
on  other  days.  The  exception  to  the  admission  of  testimony 
in  regard  to  other  days,  if  we  look  simply  to  the  exception, 
is  not  explicit.  If,  however,  we  look  to  what  follows  in  the 
record,  it  seems  to  bo  clear  that  the  purpose  of  the  question 
which  was  objected  to  was  to  introduce  testimony  to  prove  the 
offense  on  other  days  than  October  13th,  and  that  the  purpose 
of  the  objection  was  to  prevent  it.    We  think  the  exception, 


^m" 


336 


AMERICAN  CRIMINAL  REPORTS. 


SO  regarded,  should  be  sustained.  We  think  also  that  testi- 
mony to  prove  the  offense  on  other  days  having  been  admitted, 
the  prosecution  ought  to  have  been  required  to  specify  the  day 
on  which  it  would  go  to  the  jury.  Without  such  specification 
the  defendant,  who  was  charged  with  committing  the  offense 
on  only  one  day,  was  called  on  to  defend  himself,  by  evidence 
and  argument,  against  a  prosecution  for  committing  it  on  four 
different  days.  This  was  manifestly  wrong.  The  jury,  too, 
who  were  impaneled  to  try  the  defendant  on  a  charge  of  com- 
mitting the  offense  on  one  day,  were  required  to  hear  and  con- 
sider evidence  going  to  show  his  guilt  on  four  days,  and  to  find 
him  guilty  if  they  thought  him  guilty  on  any  one  of  said  days. 
It  was  certainly  for  the  court  or  prosecution  to  define  for  tlie 
jury  specifically  what  the  charge  was  and  to  demand  from 
them  simpl}'  a  verdict  of  guilty  or  not  guilty,  on  the  charge  as 
thus  defined.  We  think,  therefore,  under  the  peculiar  circum- 
stances of  the  case,  that  the  exception  on  this  point  should  be 
sustained. 

The  last  exception  is  for  the  refusal  of  the  court  below  to 
direct  the  jury  to  render  a  special  verdict,  stating  the  day  od 
which  they  might  find  the  defendant  guilty  of  tiie  offense 
charged.  It  was,  perhaps,  within  the  discretion  of  the  coui-t 
''■^  have  granted  this  request,  but  we  know  of  no  law  by  which 
it  was  required.  Pub.  Stat.  II.  I.,  cap.  204,  sec.  34,  does  not 
extend  to  criminal  complaints.     The  exception  is  overruled. 

Exceptions  sustained  in  part,  and  cause  remanded  for  a  new 
trial. 


Hunter  v.  The  State. 

(101  Ind.,  241.) 

Intoxicating  liquous:  Sale  to  viinor  —  Instrudiona. 

1.  Belief  th.vt  minor  is  an  adult.— Where  the  seller  Ixjlievcs,  with  good 

reason,  a;  th<  time  of  sale,  that  the  minor  is  an  adult,  he  is  not  guilty 
of  the  sta  tutory  offense. 

2.  Same.—  Tlie  defendant  has  a  right  to  show  such  matters  in  defense,  and 

the  trial  court  has  no  right  to  assume  and  charge  the  jury  that  the 
uffense  ia  complete  without  regard  to  such  evidence. 


HUNTER  r.  THE  STATE. 


337 


8.  Instruction  which  undertakes  to  state  evidence.— When  it  is  un- 
dertaken to  state  all  the  elements  of  an  offense  upon  the  evidence 
before  the  jury,  the  instruction  should  be  so  constructed  as  not  prac- 
tically to  withdraw  from  the  jury  competent  and  material  evidence. 


•K< 


From  the  "Warren  Circuit  Court. 


J.  McCahe  and  E.  F.  McCabe,  for  appellant. 

F.  T.  Eord,  attorney-general,  W.  B.  Hord  and  J.  G.  Pear- 

son,  for  the  state. 

ZoM.ARS,  C.  J.  Appellant  was  indicted  and  convicted  under 
section  2094,  Eevised  St.atutes,  ls81,  which  provides  that  who- 
ever directly  or  indirectly  sells,  barters  or  gives  away  any 
intoxicating  liquors  to  Tiny  person  under  twenty-one  yeai's  of 
age  shall  be  lined. 

The  prosecuting  witness  testified  that  in  June,  1884,  he  went 
into  appellant's  saloon  and  bought  of  him  a  glass  of  lager 
beer,  for  which  he  paid  five  cents;  that  he  was  then  under 
twentv-one  rears  of  age :  that  he  had  been  shaving,  and  had  a 
beard  on  his  face. 

Tiie  appollant  testilied  that,  at  the  time  mentioned,  the  pros- 
ecuting witness.  Frame,  with  whom  he  was  but  slightly  ac- 
quainted, came  into  his  saloon  in  comi)any  with  George  Minor; 
that  Minor  caHed  foi'two  glasses  of  beer;  that  appellant  asked 
Frame  if  he  was  of  age,  and  he  answered  that  he  was;  that 
!Mi nor  also  said  that  he  knew  Frame  was  of  age;  that  appel- 
lant then  set  out  two  glasses  of  beer,  and  received  payment 
from  Elinor,  and  that  IVlinor  and  Frame  drank  the  beer. 

This  court  will  not  settle  the  conflict  and  reverse  the  judgment 
upon  the  weight  of  the  evidence.  The  indictment  charges  a  sale 
of  liquor  to  a  minor.  The  court  did  not  err  in  instructing  that 
tlie  charge  will  be  sustained  by  proof  of  a  sale  directly  or  indi- 
icctly.  The  sale  itself  is  not  the  important  thing.  The  pur- 
pose of  the  statute  is  to  prevent  minors  from  getting  and  using, 
and  thus  becoming  habitual  users  of,  intoxicating  liquors. 
Whether  the  sale  be  direct  or  indirect,  it  is  still  a  sale. 

In  the  fourth  instruction  the  court  chai'ged  the  jury  as  fol- 
lows: "If  Martin  Frame  and  one  Ctcorge  Minor  together  en- 
tered defendant's  saloon,  and  (Jeorgii  Elinor  called  for  lager 
Vol.  V  — -."i 


K,-'  « 


It 


,l1 

■if' 
Pi. 


338 


AMERICAN  CRIMINAL  REPORTS. 


beer  for  both,  and  the  defendant,  knowing  that  the  liquor  was 
to  be  drunk  by  both  Minor  and  Frame,  set  out  two  glasses  of 
beer  upon  the  counter,  and  Minor  and  Frame  both  drank  the 
same,  and  Minor  paid  for  such  liquor,  such  a  transaction  would 
be  an  indirect  sale  to  Martin  Frame ;  and  if  said  Frame  was 
under  the  age  of  twenty-one  years,  the  defendant  would  be 
guilty  of  the  offense  charged." 

This  instruction  we  think  is  erroneous.  It  is  meant,  of 
course  to  ajiply  to  the  testimony  of  the  defendant,  in  case  the 
jury  should  conclude  to  act  upon  it,  and  reject  the  testimony 
of  the  prosecuting  witness.  It  charges,  in  so  many  words,  that, 
if  certain  facts  testified  to  by  the  defendant  were  true,  they 
constituted  the  complete  offense  charged  in  the  indictment,  and 
the  jury  should  convict  him.  When  it  is  thus  undertaken  to 
state  all  of  the  elements  of  an  offense  upon  the  evidence  before 
the  jury,  the  instruction  should  be  so  constructed  as  not  to 
practically  withdraw  from  the  jury  competent  and  material 
evidence.  It  was  shown  that  Frame  had  a  beai'd  upon  his  face. 
The  defendant  testified  that  he  was  but  slightly  acquainted 
with  Frame,  and  that  both  lie  and  Minor  declared  that  he  was 
over  twenty-one  years  of  age.  All  of  this  was  practically 
withdrawn  from  the  jury  by  the  instruction  in  which  they  were 
charged  that  the  defendant  would  be  guilty  upon  the  other 
facts,  without  any  regard  to  these. 

Under  the  settled  rule  in  this  state,  if  the  defendant  believed, 
and  had  good  reasons  to  believe,  that  Frame  was  an  adult,  he 
was  not  guilty  of  the  crime  for  which  he  was  prosecuted,  evt'ii 
though  he  sold  him  liquor,  and  even  though  he  was  a  minor. 
Hineman.  v.  State,  24  Ind.,  80;  Farhaeh  v.  State,  2J:  Ind.,  77; 
Broion  v.  State,  24  Ind.,  113;  State  v.  Kalh,  14  Ind.,  403;  Rob'in- 
ius  V.  State,  63  Ind.,  235 ;  Moore  v.  State,  0.5  Ind.,  382. 

Appellant  had  the  right  to  show  in  defense  that  he  had  good 
reasons  to  believe,  and  did  believe,  that  Frame  was  of  age. 
This  he  attempted  to  do.  Whether  or  not  he  succeeded  was  a 
question  for  the  jury,  and  the  court  had  no  rigiit  to  assume 
and  charge  that  the  offense  was  complete  witiiout  regard  to 
his  evidence  upon  that  point.  Pitlshnnjh,  etc.,  R.  W.  Co.  i\ 
Wright,  80  Ind.,  236;  Gi-omoek  v.  Ihdl,  82  Ind.,  202. 

For  this  error  the  judgment  must  be  reversed.     Other  objec- 


STATE  V.  PARKER. 


839 


tions  to  the  instruction  are  discussed,  but,  as  they  may  not  be 

material  upon  a  second  trial,  we  need  not  decide  anything  in 

relation  to  them. 

Judgment  reversed. 

Note— See  Hess  v.  State,  45  N.  J.,  445;  S.  C,  4  Am.  Cr.  R.,  178.  In  that 
case,  on  an  indictment  for  selling  cattle,  knowing  them  to  be  under  quaran- 
tine, evidence  was  given  on  the  trial  of  facts  tending  to  create  a  belief  in 
the  mind  of  defendant  that  tlie  quarantine  had  been  removed  when  the 
salo  was  made;  it  was  held  error  to  refuse,  on  request,  to  charge  for  an 
acquittal  if  the  jury  found  that  the  defendant  did  so  believe,  on  the  facts 
brought  to  his  notice,  introduced  in  evidence. 


State  v.  Parker. 


(66  Iowa,  586.) 
Jeopardy:  Assault  with  intent,  etc.,  inchtded  in  an  indictment  for  murder. 

1,  Defense  op  once  in  jeopardy. —  Defendant  was  placed  on  trial  for 

murder,  and  one  witness  was  examined.  Then  it  was  discovered  that 
none  of  the  witnesses  had  been  examined  before  the  grand  jury,  and 
that  this  lx)dy  hatl  returned  the  indictment  on  the  minutes  of  the  com- 
mitting magistrate.  The  district  attorney  asked  leave  to  introduce  the 
evidence  of  the  witness(>s  against  the  defendant  or  to  compel  defend- 
ant to  allow  the  cause  to  be  continued,  which  motion  was  sustained  by 
the  court;  tiiereupon  the  defendant  moved  the  court  to  direct  the  jmy 
to  return  a  verdict  of  "not  guilty."  This  being  overruled,  he  contin- 
ued the  case,  and  the  jury  were  discharged.  Held,  that  defentlant  had 
not  been  put  in  jeopardy  on  the  first  abortive  trial,  and  that  he  could 
be  tried  a  second  time. 

2.  Assault  with  intent  to  do  oreat  bodily  harm.— Where  the  evi- 

dentie  so  justifies,  a  verdict  of  "  guilty  of  assault  with  intent  to  com- 
mit a  great  bodily  injur}'  "  may  be  found  on  an  indictment  for  murder. 


Appeal  from  Carroll  District  Court. 

Defendant  was  indicted  for  murder  in  the  first  degree,  and, 
upon  trial,  was  convicted  of  an  assault  with  intent  to  do  a  great 
bodily  injury,  and  from  a  judgment  upon  this  conviction  ap- 
peals to  this  court. 


9 


W.  <1.  ThotnpHon  and  IF.  //.  Others,  for  ap[)ellant. 
A,  J.  Bilker,  attorney -general,  for  the  state. 


Ng^ 


840 


AMERICAN  CRIMINAL  REPORTS. 


a'.;]?" 


m 


"^'M. 


Bkck,  C.  J.  1.  The  defendant  having  been  put  upon  trial  on 
the  indictment,  a  jury  was  impaneled  and  sworn,  and  the  state 
examined  one  witness,  who  was  cross-examined  by  defendant. 
It  then  appearing  that  none  of  the  state's  witnesses  had  been 
examined  before  the  grand  jury  returning  the  indictment,  wliicii 
had  been  found  upon  the  minutes  of  the  evidence  as  returned  by 
the  committing  magistrate,  as  autliori/.ed  by  section  3,  cliaptor 
130,  Acts  Eighteenth  General  Assembly,  which  repealed  f'odo, 
§  4289,  thereupon  the  district  attorney,  under  Code,  §  4421. 
asked  leave  to  introduce  the  evidence  of  the  witnesses  against 
defendant,  showing  by  affidavit  that  lie  was  not  the  district 
attorney  when  the  indictment  was  found,  and  that  he  was  not 
informed  the  Avitnesses  did  not  testify  before  tlie  grand  jurv, 
and  he  believed  that  they  did;  such  belief  being  based  upon 
the  fact  that  their  names  were  indorsed  upon  tlie  indictment. 
lie  states  in  his  affidavit  that  his  ignorance  of  the  facts  of  the 
case,  and  his  belief  that  the  witnesses  liad  testified  before  the 
grand  jury,  were  the  reasons  that  induced  him  not  to  give  tlie 
notice  required  by  Code,  Jj  4421  Tiio  district  court  sustained 
the  application  of  the  district  attorney,  and  reipiired  tlie  de- 
feiulant,  as  is  inquired  by  Code,  j:?  4421,  to  elect  either  to  allow 
the  cause  to  be  contiiMied  or  the  witnesses  to  testifv.  To  this 
ruling  defendant  excepted,  and  moved  the  court  to  direct  the 
jury  to  return  a  verdict  of  not  guilty.  Tiie  motion  was  over- 
ruled ;  thereui)on  the  def<mdant  elected  that  the  cause  be  con- 
tinued, and  it  was,  accordingly,  so  ordered,  and  the  jury  was 
discharged.  At  the  next  term  defendant  pleaded  specially  the 
facts  of  the  proceeding  at  the  prior  term,  as  above  recited, 
alleging  that  he  had  "once  been  put  in  jeopardy  of  his  life 
and  liberty  for  the  same  offense,"  and  "  had  been  duly  acquitted 
of  all  the  otfenses  set  out  in  the  indictment."  The  matter 
then  pleaded'was  held  by  the  district  court,  by  an  instruction 
to  the  jury,  not  to  be  a  defense  to  the  indictment.  This  ruling 
is  the  foundation  of  the  tirst  objection  urged  by  defendant  to 
the  conviction.     It  now  demands  our  attention. 

2.  Counsel  insist  that  defendant  was  put  in  jeopardy  of  life 
and  liberty  by  the  first  abortive  trial;  that  such  jeopardy  be- 
gan when  the  jury  was  sworn  to  try  the  case;  and  that  tlic 
subsequent  conviction  of  defendant  upon  another  trial  is  in 
conflict  with  the  fifth  amendment  of  the  constitution  of  the 


of  life 
•dy  Ih'- 
liit  the 
1  is  ill 
of  tli<" 


STATE  V.  PARKER. 


841 


United  States,  which  declares  that  no  person  shall  be  subject 
for  the  same  offense  to  be  twice  put  in  jeopardy.  It  is  prob- 
able, but  the  point  we  do  not  decide,  that  it  would  be  found, 
upon  consideration,  that  this  provision  of  the  federal  constitu- 
tion is  applicable  alone  to  the  administration  of  the  criminal 
laws  of  the  United  States,  and  was  not  intended  to  limit  the 
power  of  the  states  by  prescribing  a  rule  directing  the  manner 
of  the  execution  of  their  criminal  statutes.  See  Barron  v. 
Mayor  of  Baltimore,  7  Pet.,  2-1:7;  Withers  v.  Bitekley,  20  How., 
84.  And  it  would  appear  that  the  facts  of  this  case  are  not 
within  the  prohibition  of  article  1,  §  12,  of  our  own  constitu- 
tion, which  declares  that  "  no  person  shall,  after  acquittal,  be 
tried  for  the  same  offense."  Tlie  defendant  was  not  acquitted 
upon  the  mistrial ;  the  constitutional  prohibition  does  not,  there- 
fore, protect  him  from  a  second  trial.  The  proposition  seems 
to  be  too  plain  to  admit  of  argument. 

3.  But  if  it  be  conceded,  which  may  be  done  for  the  purpose 
of  this  case,  that  defendant  cannot  be  twice  put  in  jeopardy  by 
successive  trials  for  the  same  offense,  yet,  under  tlie  doctrine 
recognized  by  this  court  in  State  v.  Redman,  17  Iowa,  329,  by 
the  mistrial  defendant  was  not  put  in  jeopardy,  and  he  cannot, 
therefore,  claim  that  ho  was  in  jeopardy  a  second  time  upon 
the  final  trial.  In  that  case  it  was  held  that  a  trial  and  a  verdict 
of  guilty,  wliich  was  set  aside  on  the  ground  of  informality  (the 
indictment  being  for  larceny,  and  the  verdict  failing  to  specify 
the  value  of  the  stolen  property),  did  not  put  the  defendant  in 
jeopardy,  so  that  he  could  claim  protection  from  a  second  trial. 
That  case  is  stronger  in  its  facts  supporting  the  claim  that  the 
accused  was  before  in  jeopardy  than  is  this.  This  proposition 
does  not  in  its  support  demand  discussion.  Following  State  v. 
Redman,  we  hold  that  defendant  was  not  put  in  jeopardy  by 
the  mistrial.  State  v.  Calendine,  8  Iowa,  288,  is  not  in  conflict 
with  our  construction  in  this  case.  In  that  case,  upon  a  trial  of 
the  indictment,  the  court  dismissed  it  and  discharged  the  de- 
fendant. It  was  held  that  the  dismissal  of  the  indictment 
amounted  to  an  acquittal,  which  was  well  pleaded  in  bar  of  the 
subsequent  indictment  for  the  same  offense. 

4.  It  is  urged  by  counsel  for  defendant  that  the  verdict  of 
guilty  of  an  assault  with  an  intent  to  commit  a  great  bodily 
injury,  upon  the  indictment  for  murder,  is  unauthorized  by  law. 


^)-> 


342 


AMERICAN  CRIMINAL  KEPORTS. 


Code,  §  4406,  provides  that  "the  defendant  may  bo  found 
guilty  of  an  offense  the  commission  of  which  is  necessarily  in- 
cluded in  that  with  which  he  is  charged  in  the  indictment." 
It  cannot  be  doubted  that  an  assault  is  included  in  the  crime 
of  murder.  Usually  an  indictment  in  express  words  charges 
an  assault  with  felonious  intent.  Of  necessity,  an  assault  must 
have  been  literally  committed  in  all  cases  of  murder  by  direct 
violence.  The  intent  with  which  the  assault  is  committed  re- 
lates to  its  character  and  indicates  its  degree.  It  is  discovered, 
not  in  the  extent  or  nature  of  the  violence,  but  in  the  animus 
of  the  perpetrator.  It  follows  that  an  assault,  whether  with 
an  intent  to  murder,  to  maim,  or  to  inflict  a  great  bodily  in- 
jury, is  included  in  the  crime  of  murder.  It  is  the  settled 
doctrine  of  the  law  in  this  state  that  an  assault  is  included  in 
the  crime  of  murder;  the  intent  with  which  the  assault  is  com- 
mitted does  not  exclude  it.  This  case  illustrates  the  reason- 
ableness of  the  rule  wo  recognize.  The  indictment  alleges 
assault  upon  the  deceased,  who  was  a  child,  the  failure  and 
refusal  of  defendant  to  furnish  him  with  medical  treatment 
and  care,  and  the  compelling  of  the  child  to  work  while 
wounded  and  bruised.  Now,  if  the  jury  found  that  death  re- 
sulted, not  from  the  assaults  and  treatment  received  from  de- 
fendant, but  from  disease,  and  also  found  that  defendant  did 
assault  the  child  with  an  intent  to  inflict  a  great  bodily  injury, 
their  verdict  is  authorized  by  the  law,  the  assault  being  included 
in  the  charge  of  murder.  Other  objections  to  the  judgment  of 
the  district  court  than  those  above  discussed  are  not  argued  by 
defendant's  counsel. 

Upon  consideration  of  the  whole  record  before  us,  wo  find 
no  ground  for  reversing  the  judgment.  It  must  therefore  be 
affirmed. 


Note. — The  principle  "  that  no  person  shall  be  .  .  .  subject,  for  llw 
HHnie  offense,  to  be  twice  put  in  jeopardy  of  life  or  limb,"  is  older  than 
writtt'ii  constitutions.  While  the  decision  may  be  in  harmony  with  the 
peculiar  wording  of  the  Iowa  constitution,  it  would  seem  to  be  in  conflict 
with  the  great  weight  of  modern  decisions.  As  the  subject  is  discusscil  in 
all  text-books  on  criminal  law  it  will  be  unnecessary  to  enlarge  upon  it  here. 
See  AddMH  v.  State,  99  Ind.,  344  (S.  C,  4  Am.  Cr.  R.,  309  and  note).  See, 
alfio,  A?a;  2)arte  Lange,  18  Wall.,  163. 


'M:i 


STATE  V.  KELLY. 


848 


State  v.  Kkllt. 

(76  Maine,  881.) 

JUBiSDlcnON :  Offenses  committed  in  territory  purchased  by  or  ceded  to 

United  States. 

The  courts  of  Maine  have  no  jurisdiction  m  a  case  of  murder  or  man- 
slaughter committed  within  Fort  Popham,  which  is  near  the  mouth  of 
the  Kennebec  river.  And  when  a  mortal  blow  is  struck  or  wound 
inflicted  in  a  fort  of  the  United  States,  and  the  person  so  struck  or 
wounded  dies  out  of  the  fort,  the  crime  caiuiot  be  regarded  as  com- 
mitted where  the  person  dies. 

Washington  Gilbert,  for  the  respondent. 

Walton,  J.  The  question  is  whether  the  courts  of  this  state 
have  jurisdiction  of  the  crimes  of  murder  or  manslaughter 
committed  within  Fort  Popham,  near  tlie  mouth  of  the  Ken- 
nebec river. 

We  think  they  have  not.  Fort  Popham  is  a  United  States  fort. 
It  is  erected  on  land  purchased  for  a  fort ;  and  the  purchase 
was  made  by  consent  of  the  legislature  of  this  state.  The  con- 
stitution of  the  United  States  declares  that  congress  shall  have 
power  to  exercise  exclusive  legislation  over  all  places  purchased 
by  the  consent  of  the  legislature  of  the  state  in  which  the  same 
shall  be,  for  the  erection  of  forts,  iliagazines,  arsenals,  dock- 
yards and  other  needful  buildings;  and,  in  the  exercise  of  this 
power,  congress  had  enacted  what  the  punisluncnts  for  murder 
and  manslaughter  shall  be  when  committed  within  any  fort, 
ai-sonal,  dock-yard,  magazine  or  other  place  under  the  jurisdic- 
tion of  the  United  States,  and  conferred  authority  u])on  the 
federal  courts  to  try  the  persons  charged  with  these  otfenses. 
The  conclusion  is,  therefore,  inevitable,  that  the  courts  of  this 
state  do  not  have  jurisdiction  of  the  crimes  of  murder  or  man- 
slaughter committed  in  a  United  States  fort.  In  fact,  we  do 
not  know  that  this  proposition  is  denied  by  any  one. 

But  it  is  said  that,  although  a  mortal  wound  may  be  inflicted 
within  a  fort,  still,  if  the  person  wounded  dies  elsewhere,  the 
crime  must  not  be  regarded  as  having  been  committed  in  the 
fort,  but  at  the  place  where  the  person  dies;  and  that  in  such 
a  case  the  courts  of  the  latter  place  have  jurisdiction.  It  is 
undoubtedly  true  that  the  courts  of  the  latter  place  do  some- 


■  ski  '       .i  :■■(■■:  f- 


844 


AMERICAN  CRIMINAL  REPORTS. 


times  have  jurisdiction.  But  we  are  satisfied  that  when  this  is 
BO,  it  is  not  because  the  crime  is  to  be  regarded  as  having  been 
committed  there,  but  because  some  rule  of  law,  statutory  or 
otherwise,  expressly  confers  such  jurisdiction.  The  modern 
and  more  rational  view  is  that  the  crime  is  committed  where 
the  unlawful  act  is  done,  and  that  the  subsequent  death,  while 
it  may  be  sufficient  to  confer  jurisdiction,  cannot  change  tiie 
locality  of  the  crime. 

And  this  brings  us  to  the  only  question  in  relation  to  which 
there  can  be  any  doubt  in  this  case,  and  that  is,  whether  our 
statute,  which  declares  that  if  a  mortal  wound  is  inflicted,  or 
poison  administered,  on  the  high  seas,  or  without  the  state, 
whereby  death  ensues  within  the  state,  such  offense  may  be 
tried  in  the  county  where  the  death  ensues.  R.  S.,  cii.  l:'.l. 
sec.  3. 

Perhaps  it  is  a  sufficient  answer  to  say  that  this  statute  was  not 
intended  to  apply  to  the  United  States  forts  which  are  within 
our  state;  that  by  its  terms  it  applies  only  to  the  high  seas  iuid 
other  places  without  the  state;  that  the  purchase  of  land  by 
the  United  States  for  a  fort,  while  it  confei-s  upon  congn^ss  the 
exclusive  power  to  legislate  for  it,  does  not  take  the  land  out 
of  the  state.  It  is  still  within  our  territorial  limits.  ]iut  we 
do  not  rest  our  decision  upon  this  ground.  Another,  and,  as 
it  seems  to  us,  a  conclusive  answer,  is  that  the  power  of  con- 
gress to  legislate  for  the  territory  on  which  a  United  States 
fort  is  erected,  is  declared  by  the  federal  constitution  to  be  ex- 
clusive. Consequentl}'^,  there  can  be  no  concurrent  jurisdic- 
tion. And  any  statute  of  the  state  which  should  attempt  to 
exercise  sucli  a  jurisdiction  must  necessarily  be  unconstitutional 
and  void,  (.'ongress  has  provided  for  the  punishment  of  crimes 
committed  within  the  forts  of  the  United  States.  It  has  ex- 
pressly provided  for  the  punishment  of  murder  Jind  man- 
slaughter. R.  S.  U.  S.,  sees.  5339,  .5341,  .5343.  And  conferred 
exclusive  jurisdiction  upon  the  federal  courts.  Id.,  see.  'ISO, 
cl.  20.  lEow,  then,  can  a  state  court  take  jurisdiction  ?  Clearly 
it  cannot,  unless  when  a  mortal  blow  or  wound  is  inflicted  in 
a  fort,  and  the  person  struck  or  wounded  dies  out  of  the  fort, 
the  crime  is  regarded  as  committed  where  the  person  dies; 
and  this,  as  already  stated,  is  a  doctrine  which  we  cannot  sus- 
tain. 


COMMONWEALTH  v.  COLLINS.  345 

It  is  condemned  by  the  weight  of  modern  authority,  English 
as  well  as  American,  and  is  opposed  to  reason. 

The  authorities  bearing  on  the  question  will  be  found  in 
Bishop's  Criminal  Law,  vol.  1,  sees.  69,  154;  Bishop's  Criminal 
Procedure,  ch.  4;  Commomoealth  v.  Macloon  et  als.,  101  Mass., 
1,  and  in  the  report  of  Guiteau's  trial  for  the  murder  of  Presi- 
dent Garfield. 

The  plea  in  abatement  is  sustained  and  the  prisoner  surren- 
dered to  the  United  States  authorities. 

Peters,  C.  J.,  Dani-outii,  Virgin  and  Libbey,  JJ.,  concurred. 


Commonwealth  v.  Collins. 

(138  Mass.,  483.) 

Larceny  from  the  person:  Indictment. 

An  indictment  alleging  the  larceny  from  the  person  of  "  divers  promis- 
sory notes,"  and  of  "  divers  coins  of  the  United  States  current  as 
money  in  said  commonwealth,"  with  proper  averments  of  value,  own- 
ership and  possession,  is  sufticient. 

J.  E.  Bates  and  A.  W.  Ilayeti,  for  the  defendant. 
II.  JSf.  Shejoard,  assistant  attorney-general,  for  the  common- 
wealth. 

"W.  Allen,  J.  This  is  an  indictment  for  larceny  from  the 
person  of  "divers  promissory  notes  of  the  ainonnt  and  value 
in  all  of  $6,"  and  "  divers  coins  of  the  United  States  current  as 
money  in  said  commonwealth  of  the  amount  and  of  the  value 
in  all  of  $3."  The  only  exception  is  to  the  decision  of  the 
court  overruling  a  motion  to  quash  the  indictment,  because 
"  neither  of  its  averments  of  property  contains  a  full,  particu- 
lar and  legally  sufficient  description  of  the  moneys  supposed 
to  have  been  wrongfully  taken." 

The  motion  seems  to  assume  that  a  larceny  of  bank-bills 
was  intended  to  be  charged,  and,  as  this  was  assumed  at  the 
argument,  we  have  considered  the  case  as  if  it  appeared,  upon 
the  face  of  the  indictment,  that  bank-bills  were  described  as 
promissory  notes. 


»i 


li 


.W'i-Y 


846 


AMERICAN  CRIMINAL  REPORTS. 


In  an  indictment  for  the  larceny  of  a  promissory  note,  it  is 
sufficient  to  describe  the  property  as  "  one  promissory  note," 
with  proper  averments  of  value  and  ownership.  Com.  v.  liret- 
tun,  100  Mass..  206.  So  coin  is  sufficiently  described  by  the 
word  "  coin."     Com.  v.  Gallagher,  16  Gray,  210. 

Lank-notes  are  properly  described,  in  an  indictment  for  the 
larceny  of  them,  as  promissory  notes.  Com.  v.  Buttn,  124 
Mass.,  449,  and  cases  cited ;  Com.  v.  Gallagher,  126  Mass.,  54. 
It  follows  that,  in  an  indictment  for  the  larceny  of  a  bank- 
note, it  is  sufllicient  to  allege  the  larceny  of  a  promissory  note, 
without  other  description,  except  what  is  contained  in  proper 
averments  of  value,  ownership  and  possession. 

As  the  terms  "  promissory  note  "  and  "  coin  "  are  of  them- 
selves sufficient  descri])tions,  there  is  no  occasion  for  an  aver- 
ment that  the  grand  jury  were  unable  to  give  a  fuller  descrip- 
tion. The  further  fact,  whether  it  be  that  the  promissory  note 
Avas  the  note  of  a  bank  or  of  John  Doe,  or  that  the  coin  was  a 
silver  coin  or  a  gold  coin,  need  not  be  stated,  though  known 
to  the  grand  jury.  If  stated,  it  would  be  an  unnecessary  aver- 
ment, which  would  become  material  by  being  made,  like  that 
of  the  color  of  a  horse. 

In  charging  a  larceny  of  several  articles  of  the  same  kind, 
it  is  not  necessary  to  state  the  number  nor  to  allege  the  value 
of  each  article.  It  is  suiticient  to  allege  a  larceny  of  divers  of 
the  articles  of  an  aggregate  value.  This  is  a  common  mode 
of  charging  larceny  of  bank-notes  and  of  coin.  Com.  v.  Hus- 
««y,  111  Mass.,  432;  Com.  v.  /Stehhins,  8  Gray,  492;  Co?n.  v. 
Chimes,  10  Gray,  470;  Com.  v.  Gallagher,  16  Gray,  240;  Co7ii. 
V.  Butts,  ubi  supra. 

Exceptions  overruled. 


State  v.  Graff. 

(66  Iowa,  482.) 

Labcbmt  from  the  person  :  Included  in  roibbery. 

Larceny  from  person  and  robbery  distinguished,  and  motion  in  arrest  of 
judgment,  on  verdict  of  guilty  of  larceny  from  person,  held  properly 
overruled. 


STATE  V.  GRAFF. 


347 


Appeal  from  Dubuque  District  Court. 

The  grand  jury  of  Dubuque  county  presented  an  indictment 
against  the  defendant,  accusing  him  of  the  crime  of  larceny 
from  the  person  of  another.  He  pleaded  not  guilty,  was  tried, 
convicted,  and  sentenced  to  a  term  of  imprisonment  in  the 
penitentiary  at  Anamosa,  and  from  this  judgment  he  appeals. 

A.  J.  BaJcet;  attorney -general,  for  the  state. 
T.  S.  Wilson,  for  appellant. 

Reed,  J.  The  charge  in  the  indictment  is  that  defendant 
stole  a  watch  and  chain  from  the  j)erson  of  one  M.  Dworskey. 
Tlie  proof  was  tliat  lie  took  the  property  from  Dworskey's  per- 
son by  violence.  After  the  verdict  was  returned,  defendant 
filed  a  motion  in  arrest  of  judgment,  on  the  ground  that  the 
evidcMice  showed  that,  if  he  committed  any  crime  in  the  trans- 
action in  question,  it  was  robbery,  and  not  the  offense  of  which 
he  was  accused  in  the  indictment.  The  district  court  overruled 
this  motion,  and  pronounced  judgment  on  the  verdict.  The 
question  raised  by  the  motion  is  the  only  one  presented  by  the 
record  for  our  determination. 

The  crime  of  robbery  is  defined  by  section  3858  of  the  code 
in  the  following  language:  "  If  any  person,  with  force  or  vio- 
lence, or  by  putting  in  fear,  steal  and  take  from  the  person  of 
another  any  property  that  is  the  subject  of  hirceny,  he  is  guilty 
of  robbery,"  etc.  And  it  is  provided  by  section  3905  that  "  if 
any  pei-son  commit  the  crime  of  larceny  ...  by  stealing 
from  the  person  of  another  he  shall  be  punished,"  etc.  It  will 
be  observed  that  each  of  the  offenses  includes  the  taking  of 
property  from  the  person  of  another.  In  the  one  case,  the 
taking  is  by  stealth ;  while  in  the  other  it  is  accomplished  by 
force  or  violence,  or  by  putting  in  fear.  In  both  cases,  how- 
ever, the  taking  is  regarded  by  the  law  as  larceny  of  the  prop- 
erty. The  words  "  steal  and  take,"  in  the  section  defining 
robbery,  are  synonymous  with  "  stealing,"  as  used  in  the  other 
section.  The  allegation  in  the  indictment,  that  defendant  "  did 
steal "  the  property  from  the  person  of  Dworskey,  is  sustained, 
then,  by  proof  that  he  took  it  from  his  person  feloniously  and 
with  force.  All  that  can  be  claimed  is  that,  while  the  evidence 
established  all  the  elements  of  the  crime  charged  in  the  indict- 


\M 


'.■.■'4' 


t 


11 


848 


AMERICAN  CRIMINAL  REPORTS. 


raent,  it  proved  one  fact  in  addition  thereto,  and  would  have 

warranted  a  conviction  of  another  offense  if  defendant  had 

been  accused  of  that  offense.    But  this  affords  no  ground  for 

arresting  judgment  on  the  verdict.     The  court  is  warranted  in 

pronouncing  judgment  on  the  verdict  of  guilty  in  any  case  in 

which  the  proof  establishes  all  the  elements  of  the  crime 

charged  in  the  indictment. 

Affirmed. 


Commonwealth  v.  Holmes. 

(137  Mfiss.,  248.) 

Larceny:  Property  of  different  persons  —  Practice. 

When  the  complant  contains  several  counts,  each  charging  a  distinct  lar- 
ceny of  the  property  of  a  different  person,  it  is  no  ground  for  a  motion 
to  dismiss  the  complaint,  on  appeal  in  the  superior  court,  that  the  record 
of  the  lower  court  shows  that,  on  the  complaint  being  read  to  the  de- 
fendant, she  was  asked  whether  she  was  guilty  or  not  guilty  of  the 
"offense"  charged:  that  she  pleaded  not  guilty,  and  was  tried  and 
convicted  "  of  the  offense  aforesaid," 

C.  II.  Hudson  and  P.  J.  Cam/,  for  the  defendant. 

E.  J.  Sherman,  attorney -general,  for  the  common -.vealth. 

W.  Allen,  J.  The  conviction  in  the  inunicijial  court  a})- 
pears  upon  the  record  to  Imve  been  regular.  AVhen  a  com- 
plaint contains  several  counts,  wlietlier  for  the  same  or  fur 
different  similar  offenses,  the  plea,  conviction  and  sentence 
may  be  general,  upon  the  complaint  as  a  whole,  and  not  upon 
each  count  separately.  Carlton  v.  Com.,  5  JMet.,  Wo'l ;  Co)ii.  v. 
Foster,  1*22  ^lass.,  317;  Kite  v.  Com., 11  ^[et.,  581.  In  such 
case,  the  form  of  })lea,  conviction  and  sentence  is  the  same 
when  the  different  counts  are  for  the  same  offense  as  when 
they  are  for  sevei'al  offenses;  and  the  conn)laint  itself  may  not 
indicate  whether  the  counts  refer  to  different  transactions,  or 
are  different  modes  of  charoinf;  the  same  act.  The  record  of  the 
municipal  court  shows  that  the  defendant  pleaded  to  the  whole 
complaint,  and  was  convicted  of  the  whole;  and  it  is  imma- 
terial, upon  the  motion  to  dismiss,  whether  the  different  counts 
were  intended  to  ciuir<j:e  the  same  or  different  offenses. 


COMMONWEALTH  v.  HOLMES. 


349 


Even  if  the  defendant  could  make  it  appear  that  she  had  been 
convicted  of  but  one  of  four  different  offenses  charged  in  the 
complaint,  it  would  seem  that  she  could  be  tried,  upon  appeal, 
for  the  offense  of  which  she  had  been  convicted.     Com.  v. 

Hohnes,  119  Mass.,  195. 

Exceptions  overruled. 

Note. — Stealing  property  otcned  by  different  persons. —  In  Lorton  v.  The 
State,  7  Mo.,  55,  the  defendant  was  indicted  for  stealing  the  goods  and  chat- 
tels of  Richmond  Curie,  and  at  the  same  time  was  also  indicted  for  stealing 
the  goods  and  chattels  of  one  John  B.  Gihson ;  the  defendant  pleaded  guilty 
to  the  first  indictment,  and  to  the  second  pleaded  a  former  conviction  for  the 
same  offense.  After  the  testimony  was  introduced,  the  prisoner  requested 
the  court  <o  charge  the  jury  that  if  they  helieved  from  the  evidence  that  the 
goods  of  Gurle  and  Gibson  were  utolen  at  one  and  the  same  time,  then 
the  circumstance  of  said  goods  belonging  to  separate  owners  did  not  con- 
stitute several  offenses,  and  that  if  any  person  by  the  same  act  and  at  the 
same  time  should  steal  the  goods  of  A.,  B.  and  C,  this  constituted  but  one 
felony  or  offense  against  the  state,  etc  The  court  refused  to  give  tiiis  in- 
struction, and  the  supreme  court  held  ti;at  the  refusal  of  the  court  to  so 
instruct  was  erront  ous. 

Ill  Wilson  V.  The  State,  45  Texas,  76,  two  indictments  were  found  against 
the  defendant.  The  first  charged  that  the  defendant  stole  property  belong- 
ing to  one  Criner  and  from  the  possession  of  one  Hai'den,  who,  as  it  was 
averred,  was  holding  the  animal  for  the  owner  (Criner).  The  other  indict- 
ment, found  at  the  j-auie  term  of  court,  charged  tlie  defendant  with  the 
thett  of  a  saddle,  bridle,  etc.,  belonging  to  one  Harden  (who  was  the  same 
person  alleged  in  the  first  indictment  to  have  been  in  the  possession  of  the 
jiiojjerty  owned  by  Criner).  Defendant  was  tried  .'"or  stealing  the  saddle, 
bridle,  etc.,  was  found  guilt j'  and  punished  by  fine  and  imprisonment,  and 
ou  his  second  trial  he  pleaded  the  former  conviction  in  bar,  and  asked  to  be 
discliarged  from  further  prosecution  because  the  offense  for  which  he  had 
been  tried  and  convicted  was  in  fact  and  in  law  the  same  offense  of  which 
hetlieu  stood  charged.  The  plea  was  on  motion  stricken  from  the  files,  and 
for  tiie  error  committed  in  so  doing  the  case  was  reversed  by  the  supreme 
court.  The  principle  is  sustained  by  the  ft)ll()\viiig  cases:  State  r.  W'ill- 
niiiin,  10  llumpli.  (T.-nn.),  101;  Laiipher  v.  Tlie  State,  14  Ind.,;w:;  Th>>. 
State  V.  NcIkwi,  29  Me.,  339;  1  Hale's  Pleas  of  the  Crown,  531;  State  v. 
Morphin,  37  Mo.,  373. 

Thi'ft  of  seirral  articles  at  one  and  the  same  time. —  The  theft  of  several 
articles  at  one  and  liie  same  time  and  by  one  and  the  same  act  constitutes 
but  one  iii(livisil)le  crime,  and  a  Juilgment  of  conviction  or  aciiuittal  of  the 
theft  of  ()iH<  (!<■  the  articles  is  a  bar  to  a  prosecution  for  the  theft  ot  the 
others;  for  though  the  prosecutor  has  a  right  to  carve  out  as  large  an  offense 
as  tlie  transaction  will  admit  of,  still  he  can  ciuve  but  once.  Qi  lit  zoic  V, 
Tlie  State,  5  Te.vas  ft.  Ai)p..  47;  Tlie  State  r.  Cameron,  40  Vermont,  555. 

See  State  r.  ( 'olijate,  ante,  page  71,  for  a  \\.xy  full  discussion  of  the  quea- 
tiou  relative  to  two  otfenses  committed  in  one  and  the  same  act. 


350  AMERICAN  CRIMINAL  REPORTS. 

Johnson  v.  The  People. 
(113  111.,  99.) 

Labceny  by  bailee:  Indictment— Larceny  at  common  law  and  under  the 

statute  —  Instruction. 

1.  Indictjient  for  statutory  offense  —  Its  uequisite. — An  indictment 

for  a  mere  statutory  offense  must  be  framed  upon  the  statute,  and 
that  fact  must  distinctly  appear  upon  the  face  of  the  indictment. 
That  it  may  so  appear,  the  pleader  must  either  charge  the  oflfense  in  the 
language  of  the  statute  or  specifically  set  forth  the  facts  which  consti- 
tute it. 

2.  Where  a  statute  creates  a  new  oflfense,  but  does  not  describe  the  act  or 

acts  which  constitute  it,  the  pleader  must  set  them  forth  specifically. 

8.  Larceny  at  common  law  —  Porskssion  in  the  accused.— There  are 
three  classes  of  cases  in  which  convictions  for  larceny  at  common  law 
are  sustained  when  the  apparent  possession  is  in  the  accused :  First, 
where  the  accused  has  mere  custody  of  the  property,  as  distinguished 
from  possession  (as  in  the  case  of  servants  and  the  like,  whose  duties, 
from  time  to  time,  require  them  to  handle,  occupy  or  use  it,  or  to  sell 
or  dispose  of  it  to  others);  seconil,  where  he  obtains  the  custody  and 
apparent  possession  by  means  of  fraud,  or  with  a  present  purpose  to 
steal  the  property ;  and,  third,  when  one  having  acquired  jKJSsession  by 
a  valid  contract  of  bailment,  which  is  subsequently  terminated  by 
some  tortious  act  of  the  bailee  or  otherwise,  whereiiy  the  possession 
reverts  to  the  owner,  leaving  the  custt)dy  nierely  in  the  former,  and 
the  bailee,  while  being  thus  a  mere  custodian,  feloniously  converts  the 
property  to  his  own  use. 

4.  Larceny  as  bailee  under  the  statute. —  As  a  bailee  is  one  who  has 
the  possession  and  a  qualified  projierty  in  the  goods  or  other  property, 
under  a  contract  with  the  owner,  either  exjtress  or  implied,  he  cannot 
commit  a  larceny  of  the  bailment  so  long  as  the  contract  under  which 
he  holds  the  same  is  subsisting ;  but  when  the  contract  l)y  any  means 
terminates,  he  ceases  to  be  a  bailee,  and  the  possession  reverts  to  the 
owner,  although  the  b.are  custody  still  remain  with  the  bailee.  By  the 
very  terms  of  the  statute,  a  bailee  in  possession  alone  can  commit 
the  statutory  offense,  for  there  can  be  no  such  thing  as  a  bailee  out  of 
possession. 

6.  Instruction  on  hypothesis  which  the  evidence  tends  to  prove.— 
Where  there  is  evidentie  tending  to  show  that  <ine  indicted  for  larceny 
at  common  law  received  the  money  alleged  to  have  been  stolen,  as  a 
bailee,  for  safe  keejjing,  it  is  error  in  the  court  to  refuse  to  instruct  the 
jury,  at  the  instance  of  the  defendant,  that  there  could  be  no  convic- 
tion, under  the  indictment  as  framed,  for  the  statutory  offense. 

"Writ  of  error  to  tli?  rircuit  Court  of  Jolinson  County;  tlif 
Hon.  D.  M.  Browning,  judge,  presiding. 


-  i 


JOHNSON  V.  THE  PEOPLE. 
Messrs.  Gregg  d&  Parish,  for  the  plaintiff  in  error. 


351 


Mr.  Justice  Mulkey  delivered  the  opinion  of  the  court: 

At  the  November  term,  1883,  of  the  Johnson  county  circuit 
court,  John  T.  Johnson  was  convicted  and  sentenced  to  the 
penitentiary  for  two  years,  for  the  larceny  of  five  twenty-dollar 
sold  pieces,  the  property  of  one  Charles  Grattan.  The  pres- 
t'jiL  writ  of  error  is  brought  to  reverse  that  conviction. 

The  evidence  tends  to  show  the  money  charged  to  have 
been  stolen  was  voluntarily  delivered  by  the  owner  to  the  ac- 
cused for  safe  keeping,  the  former  being  on  a  spree,  and  con- 
siderably intoxicated  at  the  time.  The  indictment  under 
which  the  conviction  was  had  was  m  the  ordinary  form,  charg- 
ing the  defendant  with  a  common  law  larceny,  merely.  It 
was  contended  on  behalf  of  the  accused,  in  the  court  below, 
and  the  claim  is  renewed  here,  that  the  facts  proven  do  not 
establish  a  larceny  at  common  law,  and  that  consequently  there 
can  be  no  conviction  under  the  indictment  as  framed,  even 
conceding  the  evidence  makes  out  a  case  against  him  as  bailee, 
under  the  one  hundred  and  seventieth  section  of  the  Criminal 
Code.  If  it  be  conceded  as  a  matter  of  fact  that  the  evidence 
does  not  establish  a  larceny  at  common  law,  but  at  most  a 
mere  statutory  larceny,  then  we  agree  with  counsel  for  the 
accused  the  conviction  was  improper,  for  no  principle  of  crim- 
inal pleading  is  better  settled  than  that  an  indictment  for  a 
mere  statutory  offense  must  be  framed  ui)on  the  statute,  and 
tlmt  this  fact  must  distinctly  appear  upon  the  face  of  the  in- 
dictment itself.  That  it  shall  so  appear,  the  pleader  must 
either  charge  the  offense  in  the  language  of  the  act,  or  specific- 
ally set  foi'th  the  facts  constituting  the  same.  It  sometimes 
happens,  however,  that  the  language  of  a  statute  creating  a 
new  offense  does  not  describe  the  acts  or  acts  constituting  such 
offense.  In  that  case  the  pleader  is  bound  to  set  tliem  forth 
specifically.  This  elementary  rule  is  laid  down  in  all  standard 
works  on  criminal  law,  and  is  fully  recognized  by  this  court. 
1  Wharton  on  Crim.  Law,  sees.  164,  372;  JlIIs  v.  The  Peoj/lf, 
81  111.,  599. 

The  one  hundred  and  seventieth  section  of  the  Criminal 
Code,  just  referred  to,  is  as  follows:  "If  any  bailee  of  any 
bank  bill,  note,  money  or  other  property,  shall  convert  the 


ijrr  iiiiiMi|iiiirir 


E|iv   « 


352 


AMERICAN  ClilMINAL  REPORTS. 


same  to  his  own  use,  with  intent  to  steal  the  same,  or  secretes 
the  same  with  intent  so  to  do,  he  shall  be  deemed  guilty  of 
larceny."  This  provision  of  the  statute,  according  to  a  well 
settled  construction  given  to  similar  statutes,  both  in  this 
country  and  in  England,  was  not  intended  to  apply  to  any 
cases  which  are  larcenies  at  common  law.  2  Archbold's  Crim. 
Px'oc.  &  Pleading,  574 ;  2  Wharton  on  Crim.  Law,  sec.  1905. 
Hence  all  cases  falling  within  it  are  mere  statutory  larcenies, 
and  are  therefore  subject  to  the  rule  of  pleading  applicable  to 
statutory  offenses,  as  above  stated. 

Assuming  the  accused  to  be  guilty  of  either  the  statutory  or 
the  common  law  offense,  it  was  the  duty  of  the  jury  to  deter- 
mine, as  matter  of  fact,  from  the  evidence  before  them,  which 
of  the  crimes  had  been  committed.  On  the  other  hand,  it  was 
the  duty  of  the  court,  if  requested,  to  instruct  the  jury  as  to  all 
matters  of  law  arising  out  of  the  evidence,  calculated  to  aid  tlie 
jury  in  the  performance  of  this  and  other  duties.  On  the  trial 
of  the  cause  tiifi  court  declined  to  instruct  the  jury,  at  the  in- 
stance of  the  accused,  that  there  could  be  no  conviction,  under 
the  indictment  as  frametl,  for  the  statutory  olTense.  The  rul- 
ing of  the  court  in  this  respect,  of  course,  was  erroneous,  if 
there  was  evidence  before  the  jury  upon  which  to  base  the  in- 
slrr.ction.  Hut  before  further  discussing  the  facts,  it  will  bo 
proper  to  state,  as  near  as  may  be,  the  essential  elements  that 
enter  into  the  crime  of  larceny  at  common  law,  and  to  particu- 
larly point  out  wherein  it  differs  f»'om  tlie  statutory  offense. 

Larceny,  by  tlie  common  law,  is  defined  to  be  "  the  felonious 
taking  and  carrying  away  of  the  j)ersonal  goods  or  property 
of  another."  From  this  definition  it  follows  that  every  hii'- 
ceny  necessarily  includes  a  trosjiass,  for  a  tresi)ass  to  personal 
property  is  nothing  more  than  tiie  unlawful  and  forcible  tak- 
ing of  the  goods  of  another  without  such  felonious  intent;  and 
as  trespass  is  an  injury  to  the  [wssession  only,  it  logically  ami 
legally  follows  that  no  one  in  the  lawfid  posses»»ion  of  goods 
can  commit  a  larceny  of  them,  for  it  were  itlle  and  absurd  to 
talk  of  one  committing  an  injury  to  his  own  possessicm, —  and 
such  is  tiic  well  settled  doi'ti'ine  of  the  coimiion  law.  One, 
however,  may  have  the  actual  custody  of  goods  and  yet  not 
have  the  possession.  Thus,  goods  on  the  premises  of  the 
owner,  to  bo  used  by  himself  and  family,  including  his  serv- 


t,^.'- 


ill  bo 
that 

avtieii- 

nse. 

onions 
perty 
y  liii'- 
'sonal 
0  tak- 
;  anil 
y  and 

(roods 
JUl'tl    to 

. —  and 
One. 

vot  not 

of     tlH> 

is  soi'v- 


JOHNSON  V.  THE  PEOPLE. 


353 


ants,  are  always  to  be  deemed  in  the  possession  of  the  owner, 
although  tlie  ortlinury  duties  of  the  servants  and  other  mem- 
bers of  the  household  reijuire  them,  from  time  to  time,  to  han- 
dle, occui)y  or  use  them,  or  even  to  sell  or  dispose  of  them  to 
others.     So  wliere  chairs,  beds,  etc.,  are  occujiied  i)y  a  guest, 
whether  in  a  hotel  or  in  a  private  family,  or  wliere  plates  or 
other  articles  are  used  by  one  at  the  table  of  another,  or  wliere 
the  owner  delivers  a  chattel  to  another  \o  bo  examined  or  used 
for  some  temporary  purpose  in  the  presence  of  the  owner,  the 
same  rule  apidies.     In  all  these  cases,  and  in  all  others  analo- 
gous in  principle,  the  possession  remains  with  the  owner,  and 
those  having  the  temporary  use  or  occui)ancy  of  the  property 
are  deemed,  in  law,  to  have  the  mere  custody  of  it,  as  contra- 
distinguished from  the  possession.     I'ut  where  the  owner  of  a 
chattel  delivers  it  to  one  other  than  a  mere  servant,  in  trust, 
upon  a  contract,  express  or  implied,  that  the  latter  will  faith- 
fully t'xecuto  the  trust,  the  rule  is  different.     In  such  case, 
which  is  one  of  ordinary  bailment,  the  possession  as  well  as 
the  custody  of  the  chattel  passes  to  the  bailee  with  its  deliv- 
ery; and  it  follows  from  what  we  have  said,  while  the  contract 
of  bailment  subsists,  the  bailee  cannot,  by  the  common  law. 
commit  a  iarceny  of  the  chattel.     Such  is  undoubtedly  the 
conmion  law  rule  with  respect  to  hirceny  by  bailees.     It  is  to 
he  borne  in  mind,  however,  that  in  all  cases  ^vhero  this  rule  is 
propei'ly  applicable,  the  delivery  of  the  ])roperty  must  have 
been  fairly  and  honestly  obtained,  otherwise  the  legal  posses- 
sion will  remain  with  the  owner,  notwithstanding  the  delivery. 
In  such  case  the  ajijiarent  contract  of  bailment  is  at  the  elec- 
tion of  the  bailor,  in  contem[)lation  of  law  really  no  contract 
at  all,  by  reason  of  the  fraud,  for  it  is  a  familiar  ])i'inciple  that 
fraud   vitiates  whatever   it  enters  into.      On  this   ])rinfiple. 
whenever  there  is  an  original  purpose  on  the  i)art  of  the  bailee 
to  steal  the  ])roperty,  and  the  bailment  is  a  mere  pretense  on 
his  part  to  hide  a  felonious  intent,  the  possession  will  not  ])ass; 
and  if  the  property  is  subsequently  converted,  in  pursuance  of 
such  criminal  purpose,  it  will  be  larceny  by  the  common  law. 
But  even  in  cases  where  the  contract  of  bailment  is  valid,  and 
the  possession  has  passed  to  the  bailee,  if  the  latter  is  guilty  of 
any  tortious  act  in  respect  to  the  subject  of  bailment,  whereby 
the  contract   is  terminated,  the  possession  will  result  to  the 
Vol.  V  —  33 


W' 


:S!v 


mi 


354 


AMERICAN  CRIMINAL  REPORTS, 


bailor,  although  the  actual  custody  of  the  property  bailed  re- 
mains in  the  bailee;  and  if  the  latter,  after  the  contract  has 
been  thus  terminated,  appropriates  it  to  his  own  use  with  in- 
tent to  steal  it,  he  will  be  guilty  of  larceny  at  the  common 
law.  Thus,  where  a  carrier  of  goods  broke  a  jiackage  and 
fraudulently  converted  a  part  of  them,  it  was  held  to  be  lar- 
ceny. So  where  one  to  whom  was  handed  a  letter  containin<f 
moJU'v,  to  be  carried  to  the  postolfice,  broke  it  open  on  the 
way,  and  afterwards  converted  the  money,  it  was  held  the 
same  way.  Tlie  tortious  acts  of  brealcing  the  package  in  tiie 
one  case,  and  the  breaking  open  the  letter  m  the  other,  sever- 
ally terminated  the  contracts  of  bailment,  and  the  legal  pos- 
session resulted  to  the  respective  owners. 

From  this  review  of  the  subject  it  will  be  perceived  there 
are  three  classes  of  cases  in  whicli  convictions  for  larceny  at 
common  law  are  sustained  where  the  apparent  possession  is 
in  the  accused;  First,  wliere  the  accused  has  the  mere  cus- 
tody of  the  property,  as  contradistinguished  from  possession, 
as  in  the  case  of  servants  and  tlie  like;  second,  where  he  ob- 
tains tlie  custody  and  apparent  possession  V)y  means  of  fraud, 
or  with  a  present  purpose  to  steal  the  property;  and  third, 
where  one,  having  acquired  ])ossession  b}-  a  valid  contract  of 
bailment,  whicli  is  subsequently  terminated  by  some  tortious 
act  of  the  bailee,  or  otherwise,  whereby  the  possession  reverts 
to  th(^  owner,  leaving  the  custody,  merely,  in  the  foi-mer,  and 
the  bailee,  v  iiile  being  thus  a  mere  custodian,  feloniously  con- 
verts the  property  to  his  own  use.  l>ut  in  all  these  cases  tlie 
legal  possession  is  in  the  owner  at  the  time  of  the  felonious 
conversion,  the  accused,  in  contemplation  of  law,  being  re- 
garded as  a  mere  custodian  of  the  pro])erty.  It  is  to  be  further 
noted,  that  in  those  cases  where  the  contract  of  bailment  has 
been  induced  by  the  fraud  of  the  accustnl,  and  convictions  are 
permitted  on  that  ground,  the  owner  does  not,  either  in  fact  or 
in  law,  part  or  inteuil  to  ])art  with  the  property  itself,  and  the 
constructive  jwssession  which  he  has  of  it  by  reason  of  his 
genei'al  ownership  is  ludd  to  he  supci'lor  to  a  (jiuis/  possession 
or  custody  ae(|uired  by  meiv  fraud  or  other  wrongful  act.  i'ul 
Avhere  the  owner  intends  to  part  l)oth  with  the  title  and  posses- 
sion, and  tiie  property  is  delivered  in  i)ursuance  of  such  inten- 
tion, the  [)erson  receiving  it  cannot  be  convicted  of  larceny, 


act 
T 

fi'iii 
iitdi 


JOHNSON  r.  THE  PEOPLE. 


355 


oin<;'  I'c- 
.  further 
Hient  has 
ions  arc 
1  f.u't  or 
iind  tho 
n   of  his 
, ^session 

ct.  r««t 

(I  posscs- 

h  inten- 

iircony, 


although  the  transfer  was  induced  by  the  fraud  of  the  latter, 
and  with  a  purpose  to  steal  the  property.  In  these  cases  tho 
title  actually  passes,  subject  to  the  right  of  tho  owner  to  re- 
claim the  ])roperty  on  account  of  the  fraud,  and  thus  reinvest 
himself  with  the  title ;  but  until  he  does  this,  both  the  title 
and  possession  are  in  the  fraudulent  vendee,  and  hence  the 
latter  cannot  be  convicted  of  a  larceny  of  it.  The  general  doc- 
trines of  the  common  law  in  respect  to  larceny,  as  afTecte<l  by 
the  possession  of  the  property,  will  be  found,  upon  an  exami- 
nation of  the  following  authorities,  to  be  substantially  as  stated 
above:  2  Archbold's  Crim.  Proc.  and  Plead.,  442;  2  Whart.  on 
Crim.  Law,  sees.  1840, 1843;  Rex  v.  Bazebj,  2  East's  P.  C,  571 ; 
BitWs  Case,  id.,  572;  Lavender's  Case,  id.,  5GG;  Hex  v.  Ifuck- 
low,  1  Moore,  KiO;  2  East's  P.  C,  ('>!)2;  Bawfer  v.  People,  3 
(iilm.,  ;5()8;  We/sh  v.  People,  17  111.,  33l»;  St!ns(m  v.  People,  43 
id.,  399;  Zschocl'e  v.  People,  (52  id.,  127;  Phdps  v.  People,  55 
id,  334. 

As  a  bailee  is  one  who  has  the  possession  and  a  qualitied 
property  in  goods  or  other  ]iersonal  property  under  a  contract 
with  the  owner,  either  express  or  implied,  it  follows  from  what 
we  have  said,  and  the  authorities  just  cited,  that  ho  cannot 
commit  a  larceny  of  the  subject  of  the  bailment  so  long  as  the 
contract  under  which  he  holds  the  sjirne  is  subsisting;  but  when 
the  contract  by  any  means  terminates,  he,  of  course,  ceases  to 
be  a  bailee,  and  the  possession,  as  we  have  already  seen,  re- 
sults to  the  owner,  although  the  bare  custody  may  still  remain 
with  tlie  bailee.     In  sliort,  as  we  have  heretofore  seen,  a  bailee 
cannot,  at  the  common  law,  ootnnnt  a  larceny  of  the  subject  of 
bailment,  for  the  reason  the  possession  is  in  the  badee.     Under 
the  one  hundred  ami  seventieth  section  of  the  Criminal  Code, 
however,  .i  baiUv  may  commit  a  statutory  larceny  of  the  sub- 
ject of  i)ailint>ut,  notwithstanding   tho   possession   is   in   the 
bailee.     Indeed,  by  the  very  terms  of  the  act  a  bailee  in  possos- 
;iion  alone  ea)i  commit  the  statutory  offense,  for  there  can  be 
no  such  a  thing  as  a  baihv  out  of  possession.     The  effect  of 
the  statute,  there Toiw  is  to  uuike  that  a  crime  which  before  the 
act  was  a  mow  biH^ich  of  trust. 

The  quv^stii>u  then  recurs,  assuming  the  defendant  to  be 
M'liiHv,  Does  the  evidence  tend  to  show  he  is  guilty  of  the  stat- 
utory offense f    Of  this  there   is  absolutelv   no  doubt.     The 


35G 


AMERICAN  CRIMINAL  REPORTS. 


prisoner  swears  positively  the  money  was  given  to  Iiini  by  Gi-at- 
tan  for  safe  keeping,  and  in  this  statement  he  is  certainly  some- 
what corroborated  by  others.     This,  of  course,  assuming  it  to 
be  true,  constituted  a  bailment  of  the  money;  and,  assuming 
the  contract  of  bailment  to  have  continued  in  force  until  the 
tinu?  of  conversion  (and  there  is  notliing  in  the  evidence  show 
ing  the  contrary),  it  atforded  a  comi)lete  answer  to  the  common 
law  indictment.     Jiut,  for  the  purposes  of  the  question  before 
us,  it  is  wholly  imnuiterial  whether  the  evidence  tending  to 
show  the  bailment  was  true  or  false.     The  evidence  was  before 
the  jury.     Of  that  there  is  no  doubt;  and  it  was  the  right  of 
the  accused  to  have  the  jury  instructed  as  to  what  his  ridits 
were,  in  the  event  they  found  the  facts  as  stated  by  him.    The 
denial  of  this  I'ight  was  error,  for  wiiicii  the  case  will  have  to 
be  reversed.    If  there  was  an  originni  intent  to  steal  the  money, 
the  prisoner  might  well  have  been  convicted  under  the  indict- 
]nent  as  framed,  as  tiiat  would  have  been  larceny  at  the  com- 
mon law,  and  it  was  the  right  of  the  people  to  have  the  jury 
so  instructed.     Hut  tliis  was  but  one  side  of  the  case  —  both 
shouhl  have  been  given.     It  may  be  the  jury  convicted  the 
accused  u[>on  the  hyi^othesis  there  was  an  original  intent  to 
steal  the  money;  but  upon  the  record  before  us  no  one  can  tell. 
Whether  the  jury  would  iiave  bern  justified  in  convicting  upon 
this  theory  is  a  (piestion  about  which  Ave  express  no  opinion. 
and  with  which  we  ai'c  not,  as  the  case  is  now  presented,  coii- 
cerned.     If  the  court  liad  given   the  defen.dant's  instruction 
presenting  this  theory  of  tlie  case  to  the  jury,  then  this  (pies- 
tion  wouhl  become  im|)ortant;  but  as  it  did  not,  the  (]uestion 
is  immaterial.     If  a  conviction  under  the  statutfMvas  I'ehed  on, 
the  indictment  should  clearly  have  set  out  the  liduciary  relation 
of  the  accused  with  resi)ect  to  the  money;  or,  in  other  words, 
should  have  set  out  the  facts  constituting  the  bailment.     This 
was  not  done.     Tiie  accused  not  being  charged  with  the  stat- 
utory offense,  it  is  therefore  clear  he  cannot,  under  tlie  present 
indictment,  be  convicted  of  it.     Some  of  the  statutes,  in  other 
respects  like  our  own,  exjux'ssly  provide  that  a  conviction  may 
be  had  under  a  common  law  indictment.     The  present  English 
statute  contains  such  a  provision,  but  ours  does  not;  hence  the 
common  law  princi[)les  of  pleading  are  to  bo  applied  with  us, 
■while  a  different  rule  would  prevail  in  those  states  or  countries 


HARRIS  V.  THE  STATE. 


3.57 


y  Grat- 

y  soino- 

ig  it  to 

>suniing 

ntil  the 

!e  show 

lommon 

n  before 

iding  to 

s  before 
right  of 

is  riglits 

111.    The 

L  have  to 

i  money, 

10  indict- 

the  com- 
the  jury 

0  —  both 

icted  tlie 

intent  to 
can  tell, 
ng  upon 
opinion, 
led,  con- 
struction 

this  ([ues- 
(luestion 
'clicnl  on, 
relation 
er  words, 
nt.    Tills 
the  stat- 
ic present 
in  other 
jtion  may 
it  Englisli 
hence  the 
d  witli  us, 
•  countries 


Avlicrc  such  a  statutory  provision  exists.     In  tlie  absence  of  such 
a  provision  the  authorities  uniformly  hohl  as  we  have  stated. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  further  ))i'oceedings  in  conformity  with  the  views 
here  expressed. 

Jmhjin  en  t  revenged. 


IIaukis  v.  TiiK  State. 
(18  Tt'xaa  Ct.  App.,  287.) 


Larcexv:  .[h'j)tomavi(i  —  CuiitiiiiKtiici'  —  Discn'thn  of  court — Evidence  — 

E.I'lK'li  tcntitlHUtlJ. 

1.  ("oNTlNUANC'K  — DISCRKTION  OF  (vUUT.— Ill  tlio  sixth  sulMliviision  (if 
iirtiek'  o(i(),  tltxlo  of  i'l'dce'duro,  it  is  j.rovidcd  that  tlie  trutli  of  tho  iiUog.n- 
tions  iiiadc!  in  every  a|i|ili(':itioii  by  a  (U'tViidaiit  for  a  contimianco,  and 
tho  merit  and  sntlifiency  of  tiie  j^round  relied  upon,  are  addressed  to 
the  "sound  discretion  of  tiie  eoiu't."  Tliis  implies  that  tlic  action 
of  the  court  upon  the  apjilicatitin,  even  when  it  is  first  presented, 
should  not  lie  an  arbitrary  determination  of  its  merits  and  sufUciency 
hy  the  trial  court,  hut  the  result  of  a  soiiiid  discretion. 

;.'.  Hamk— -Mati'.kiamtv  ok  TKSTiMOXV— Cumulative.—  In  certain  cases  the 
( innnlativo  character  of  the  testimony  (h)es  not  impair  its  nuiteriality, 
an<l  in  this  case  that  of  the  absent  witnesses  would  not  Jiave  been 
merely  cunnilative,  inasnnicli  iis  it  appears  thattlieir  opportunities  for 
full  kn(iwled.u;e  of  the  facts  were  better  than  those  of  the  witnessis  at 
the  trial ;  and,  as  tho  |)robable  truth  of  the  absent  testimony  is  also  ap- 
parent, the  trial  court  erred  in  refusing  a  new  trial  in  the  case. 

)!.  Klkitomaxia,  which  is  an  uncontrt)llable  propensity  to  steal,  is  now  n 
well  recognized  species  of  insanity,  and,  if  clearly  established  by  tlie 
evidence,  constitutes  a  comjilete  defense  in  a  trial  for  theft. 

4.  Expert  —  Nox-puofessional  testimony. — Expert  or  medical  testimony 
is  not  the  only  species  of  proof  competent  to  establish  the  defense  of 
kleptomania.  The  opinion  of  a  non-professional  witness,  bjused  on  his 
personal  observation  of  the  symptoms  of  kleptomania,  is  admissible  .as 
evidence  in  connection  with  his  testimony  to  the  s^inptomatic  facts  on 
which  Ills  opinion  rests. 

Appeal  from  tho  District  Court  of  Fort  liend.  Tried  below 
before  tho  Hon.  W.  H.  Burkhart. 

Tlie  indictment  upon  which  tho  appellant  in  this  case  was 
I'oiivicted  cliarged  him  with  the  theft  of  a  lK)rse,  the  property 
of  A.  E.  AVheeler,  in  the  county  of  Fort  Ikmd,  Texas,  on  the 


358 


AMERICAN  CRIMINAL  REPORTS. 


16th  day  of  July,  1883.    A  term  of  seven  years  in  the  peniten- 
tiary was  the  ])enalty  assessed  by  the  jury. 

P.  P.  Pearson,  for  the  appellant,  filed  an  admirable  brief 
and  argument. 
J.  II.  Burts,  assistant  attorney-general,  for  the  state. 

WnrrB,  Prksidixo  Judge.  Whilst  a  continuance,  even  though 
the  application  be  in  every  resi)ect  in  strict  conformity  witlitlie 
requisites  of  the  statute,  is  no  longer  a  matter  of  right,  still 
the  truth  as  well  as  merit  of  the  matters  or  ground  set  forth 
"  is  addressed  to  the  sound  discretion  of  the  court."  Code 
Crim.  Proc,  art.  500,  subd  (5.  The  action  of  the  court  should 
not  be  arbitrary  in  the  first  instance,  but  the  result  of  "sound 
discretion."      IliUet'  v.  Th.^  State,  18  Texas,  232. 

Especially  should  this  souiul  discretion  bo  exercised  when, 
after  having  overruled  the  application  in  the  first  instiincc,  the 
court  is  called  a  second  time  to  consider  its  materiality  and 
truth  in  connection  with  all  the  evidence  in  the  case,  on  the 
motion  for  a  new  ti'ial.  It  rarely  happens  that  the  want  of 
truth  is  positively  or  clearly,  or  even  probably,  apparent  when 
first  presented,  and,  if  overruled  upon  that  ground  in  the  first 
instance,  it  cannot  be  stated  as  a  reason  that  the  othei'  evidence 
shows  it  to  be  untrue;  because  the  other  evidence  couM  not 
have  been  before  the  court  when  it  acted  upon  the  motion. 
That  the  evidence  subsequently  adduced  shows  or  renders  it 
probable  that  the  proposed  testimony  is  untrue  can  only  bo  de- 
termined, in  a  majority  of  cases,  on  the  motion  for  a  new  trial, 
and  such  a  reason  in  such  cases  might  be  given  by  the  court, 
in  explanation  to  a  bill  of  exceptions,  for  overruling  the  motion 
for  new  trial,  in  so  fur  as  the  application  for  continuance  was 
involved  in  said  motion.  Ordinarily,  then,  the  truth  of  the 
proposed  evidence  is  matter  of  sound  discretion  on  the  motion 
for  a  new  trial.  Still,  in  all  cases,  the  court,  as  far  as  ])racti- 
cable  and  with  the  lights  before  it,  must,  even  as  to  the  truth, 
exercise  a  sound  as  contradistinguished  from  a  mere  arl)iti'ary 
discretion,  in  passing  upon  the  a]>plication  in  the  first  instance. 

Kleptomania  was  the  only  defense  relied  upon  by  the  de- 
fendant. That  kleptomania  is  a  species  of  insanity  which,  if 
clearly  established,  will  render  its  subject  morally  irresponsible 


,\.' 


HARRIS  V.  THE  STATE. 


359 


e  puniton- 


tble  brief 

:e. 

en  though 
^  with  the 
I'iglit,  still 
I  sot  forth 

•t."  Codo 
lU't  sliouhl 
of  "  sound 

iscd  when, 
stance,  the 
I'iality  und 
iiso,  on  the 
ic  want  of 
irent  when 
in  the  first 
3!'  evidence 
could  not, 
10  motion, 
venders  it 
only  be  de- 
1  new  trial, 
the  court, 
the  motion 
luanco  was 
uth  of  the 
the  motion 
•  as  practi- 
o  the  truth, 
arbitrary 
st  instance. 
])y  the  de- 
,y  which,  if 
responsible 


for  the  crime  of  theft,  is,  it  seems,  now  well  settled.  1  Whart. 
&  Stille's  Med.  Jur.  (3d  ed.),  §  590;  Looney  v.  The  State,  10 
Texas  Ct.  App.,  520. 

And  "  whatever  may  have  been  t!ie  rules  of  evidence  hereto- 
fore with  regard  to  the  proof  admissible  on  the  subject  of  in- 
sanity, the  doctrine  that  non-professional  witnesses  should  be 
allowed  to  state  their  opinion  as  to  the  sanity  of  the  party,  de- 
rived from  their  acepiaintance  with  and  observation  of  his  con- 
duct, appearance  and  actions,  luis  become  too  well  settled  to 
admit  of  doubt  or  controversy  at  this  time."  Wehh  v.  The  State, 
5  Texas  Ct.  App.,  5!)0;  citing  IMcomh  v.  The  State,  41  Texas, 
125,  and  McClacl'ey  v.  The  State,  5  Texas  Ct.  App.,  320.  In 
Thomas  V.  The  State,  40  Texas,  GO,  it  is  said:  "We  think  the 
witnesses  should  be  allowed  to  give  their  opinions  together 
with  the  facts  on  which  their  opinions  were  based,  where  it  ap- 
pears that  their  actjuaintance  with  the  ])arty  will  enable  them 
to  form  correct  opinions  of  his  mental  condition."  See,  also, 
CamphcU  V.  The  State,  10  Texas  Ct.  App.,  500. 

Kleptomania  ordinarily  is  an  abnornuil  condition  which  is 
produced  by  or  results  from  disease,  and  "the  ubnornial  tend- 
ency continues  after  the  disease,  to  all  external  appearance, 
has  ceased.  This  continuance  shows,  however,  that  mental 
disease,  though  latent,  still  exists."  Kleptomania,  it  is  said, 
will  be  found  accomi)anied,  more  or  less,  by  other  incipient 
symptoms  of  derangement,  such  as  a  general  alteration  in  the 
accustomed  mode  of  feeling,  thinking,  occupation  and  life  of 
the  individual,  a  disposition  to  scold,  dispute  and  cpiarrel,  to 
drink,  and  to  wander  about  busily  doing  nothing,  and  the  bod- 
ily signs  of  excitement,  I'estlessness,  want  of  sleep,"  etc.  1 
Whart.  &  Stille's  ISled.  Jur.,  sec.  590;  Looney  v.  The  State,  10 
Texas  Ct.  A])p.,  52(». 

Five  witnesses  for  defendant  testified  positively  to  many 
facts  and  circumstances  tending  most  strongly  to  show,  by  the 
acts  and  conduct  of  defenilant  after  his  recoveiy  from  a  serious 
and  protracted  spell  of  sickness,  that  he  had  become  a  con- 
firmed kleptomaniac,  ^fost  of  the  symptoms  of  the  disease,  as 
above  stated,  were  testilied  to  in  his  case,  and  his  petty  thefts 
andproi)ensity  to  steal  were  notorious  amongst  those  who  knew 
and  associated  with  him.  Some  of  these  witnesses  testified  that 
tlie  absent  witness,  White,  for  whom   the  continuance  Avas 


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AMERICAN  CRIMINAL  REPORTS. 


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sought,  was  more  particularly  intimate  with,  and  had  bettor 
means  of  knowing  his  condition,  and  Avas  better  able  to  give  an 
opinion  as  to  his  mental  condition,  than  any  one  else.  This  wit- 
ness, White,  had  been  recognized  at  the  time  of  the  trial  as  a 
witness  for  defendant,  and  diligence  is  fully  shown  so  far  as 
he  was  concerned.  His  proposed  testinion\',  as  set  out  in  the 
application  for  continuance,  is  not  only  material,  but  probal)ly 
true,  in  the  light  of  the  other  evidence.  It  cannot  be  said  that 
the  evidence  was  but  cumulative.  In  suoii  cases,  or  rather  in 
this  character  of  defense,  the  greater  the  number  of  witnesses 
testifying  to  the  insanity  of  the  accused  the  more  likely  is  the 
fact  to  become  conclusively  established.  That  the  evidence 
would  be  but  cumulative  is  no  suHicient  reason  for  its  exclu- 
sion in  such  a  case,  nor  is  it  a  good  ground  for  overruling  an 
application  for  continuance  otherwise  sutlicient.  Under  the 
facts  in  this  case  we  are  of  opinion  the  coiu't  should  have 
granted  the  continuance  in  the  lirst  instance,  and  we  are 
clearly  of  opinion  that  the  court  should  have  granted  the  new 
trial,  upon  account  of  the  pi'oposed  testimony  of  the  absent 
witness,  if  for  no  other  reason. 

Several  other  supi)osed  errors  are  complained  of.  Whether 
errors  or  not,  their  discussion  is  unnecessary,  as  the}'  are  of  a 
character  not  likely  to  arise  upon  another  trial.  As  to  the 
charge  of  the  court,  the  law  was  fairly  and  ably  presented, 
and  sufficiently  covered  the  subject-matter  of  the  special  re- 
quested instructions. 

For  error  in  the  ruling  of  the  court  with  regard  to  the  ap- 
plication for  continuance,  the  judgment  is  reversed  and  the 
cause  remanded  for  a  new  trial. 

Revcned  and  remanded. 


Tl'kneb  v.  State. 
(102  Ind.,  425.) 


Larceny:  Indictment  — Description  of  stolen  property  —  Evidence—  Two 

crimes  —  Instructions. 

1.  "  One  book,  of  the  value  of  ^0,  the  personul  i)r()iM'rty  of  Levi  W. 
Walker,"  is  a  description  sufficiently  accurate  in  an  indictment  cliarg- 
ing  larceny. 


4i^{. 


TURNER  V.  STATE. 


361 


3.  Fabric ATED  tkstimony  —  Impeachment.—  Where  the  defendant  testifies 
at  length,  in  tlio  effort  to  sliow  the  proper  and  lawful  manner  of  his 
having  certain  property,  it  is  comiietent  for  the  state  to  show  that  his 
stiitonients  were  false  and  his  theory  without  foundation. 

3.  Wlien  two  crimes  are  clearly  connected,  one  may  be  proved  by  estab- 

lishing the  other. 

4.  See  opinion  for  instructions  given  relative  to  presumption  of  innocence 

held  not  to  be  erroneous. 

Appeal  from  Noble  Circuit  Court. 

F.  Prid'dt,  for  appellant. 

F.  T.  Hard,  attorney-general,  and  ^Y.  B.  Ilord,  for  the  state. 

Er.i.Kvn',  J.  The  imlictment  upon  which  the  appellant  was 
convicted  cliargcs  him  with  stealing  "  one  book,  of  the  value 
of  .^(!,  the  pr-'sonal  ]iroperty  of  Levi  W.  Walker."  AVe  think 
that  the  description  of  the  property  stolen  is  sufficient.  The 
case  of  St(de  v.  Lotjan,  1  ]\[o.,  532,  is  exactly  in  jmint,  and  the 
princi])lc  upon  which  the  decision  rests  is  decided  in  many 
ciises.  State  v.  Kiiuj^  31  La  Ann.,  170;  Stidc  v.  Carter,  33  La. 
Ann.,  1214;  2  J'ish.  Crim.  Troc.,  §  700,  and  authorities  cited. 
The  books  are  full  of  cases  in  whicii  it  was  held  tliat  such  de- 
scriptions as  "one  horse,"  'one  cow,"  '"one  hog,"  are  sutti- 
cient,  and  there  is  no  reason  why  a  different  rule  should  apply 
here. 

The  defendant  testified  as  a  witness  in  his  own  behalf,  and 
in  the  course  of  his  testimony  stated  that  he  was  a  book-agent, 
representing  a  Philadelphia  firm ;  that  when  he  left  Fort  AVayne 
for  Auburn  ho  had  in  his  possession  several  books,  among 
others, "  Jones  on  Chattel  !^[ortgages ; "  that  he  had  purchased 
it  at  rhiladeli)hia;  and  he  made  some  statements  as  to  his  busi- 
ness at  Auburn.  The  state  was  permitted,  in  giving'  evidence 
in  reply,  to  ])rove  by  J\[i'.  Peterson  that  tiie  bo  )Ic  was  stolen 
from  him,  and  that  the  one-hundredth  ])age,  containing  his 
name,  was  torn  out.  The  a])pellant  complains  of  the  admis- 
sion of  this  testimony.  The  testimony  objected  to  contradicted 
the  appelant  upon  a  material  point,  or  rather  upon  two  ma- 
terial ])oints,  for  it  tended  very  strongl}''  to  sliow  that  his 
account  of  the  place  and  manner  in  which  ho  got  the  book 
alleged  to  have  been  stolen  was  not  true,  and  also  Hatly  contra- 
(Hcted  his  statement  as  to  where  he  obtained  "  Jones  on  Chattel 
^lort  gages." 


I ''J 


362 


AMERICAN  CRIMINAL  REPORTS.. 


i 


I: 


It  is  an  elementary  principle  of  criminal  law  that  the  fabri- 
cation of  evidence  is  a  cumulative  circumstance  tending  to 
establish  guilt,  and  this  evidence  very  strongly  tended  to  show 
that  Turner's  statements  as  to  how  and  where  he  procured  tlie 
books  found  in  his  possession,  including  the  stolen  one,  were  fab- 
ricated. The  testimony  went  to  the  whole  tlieory  upon  which 
he  attempted  to  account  for  his  possession  of  the  books,  and  it 
was  unquestionably  competent  for  the  state  to  show  that  liis 
statements  were  false,  and  his  theory  without  foundation. 
Where  the  specific  property  charged  to  be  stolen  is  found  in 
the  possession  of  the  accused,  in  connection  with  other  prop, 
erty,  and  the  possession  of  the  proi)erty  is  attem[)ted  to  be 
accounted  for,  it  is  proper  for  the  state  to  show  that  the  account 
given  was  untrue.  The  authorities  indeed  go  fartlier,  for  it  is 
held  that,  in  cases  of  larceny,  it  is  competent  to  show  the  pos- 
session of  other  stolen  property.  Wehb  v.  Sfafc,  8  Tex.  A])p., 
115;  3  Greenl.  Ev.,  §  31.  The  general  rule  is  tiiat  one  crime 
cannot  be  proved  by  establishing  another;  but  to  tliis  general 
rule  tliere  are  numy  exceptions.  A  notable  exception  is  wliero 
the  two  crimes  are  connected,  and  that  is  the  case  hei'c.  Jfojx  v. 
Peoj>h',  S3  X.  Y.,418  (38  Am.  II.,  4G0j;  Sfafrv.  XiKjmt,  71  ^lo., 
136;  Whart.  Criin.  Ev.  (Otli  ed.),  §  32,  note  I.  In  this  instance 
the  two  matters  were  closely  blended,  and  the  testimony  upon 
which  the  defense  mainly  rested  was  addressed  to  both,  so  tluit 
they  cannot  be  separated. 

It  is  contended  that  the  court  eired  in  giving  the  jur}-  tliis 
instruction:  "■Tlie  rule  of  law  vrhich  clothes  every  person 
accused  of  crime  witli  the  presumption  of  innocence,  and  ini- 
jwses  up(m  tlie  state  the  burden  of  establishing  his  guilt  beyond 
a  reasonable  doubt,  is  not  intended  to  aid  any  one  who  is  in 
fact  guilty  of  crime  to  escape,  but  is  a  humane  provision  of 
law,  intended,  so  far  as  human  agencies  can,  to  guard  against 
the  danger  of  any  innocent  person  being  unjustly  punished." 
We  perceive  no  error  in  this  instruction.  It  cannot  be  justly 
said  of  anv  rule  of  law  that  it  is  intended  to  aid  the  "-uiltv  to 
escape  punishment,  and  the  court  did  not  do  wi'ong  in  allii'ni- 
ing  of  the  presumption  of  innocence  that  atten<ls  all  persons 
accused  of  crime  that  it  is  not  intended  to  aid  those  who  are 
in  fact  guilty  of  crime  to  escape.  Laws  are  intended  to  secure 
the  punishment  of  the  guilty  and  to  guan'  the  innocent,  but 


'^^■.^l 


SMITH  V.  STATE. 


363 


not  to  shield  tho  guilty,  and  it  is  not  error  to  afiSrm  this  of  all 
the  rules  of  law. 

The  second  instruction  asked  by  the  appellant  was  embraced 
in  the  third  given  by  the  court,  and  there  was  no  error  in  refus- 
ing to  repeat  what  had  been  said  to  the  jury.  Goodwin  v. 
State,  96  Ind.,  550;  Union,  etc.,  Co.  v.  Buohancm,  100  Ind.,  63. 

There  is  no  assumption  of  the  facts  in  any  of  the  instruc- 
tions given  by  the  court.  The  affidavit  of  appellant,  filed  in 
sui)port  of  the  motion  for  a  new  trial,  is  contradictory,  and 
fails  to  show  diligence;  but,  waiving  this  point,  it  does  not 
appear  that  the  book  the  appellant  is  charged  with  stealing, 
namely,  "  Drake  on  Attachment,"  was  the  same  book  which 
the  attiant  saw  in  the  possession  of  the  accused  in  Fort  "Wayne, 
and  it  is  evident  that  this  evidence  would  not  change  the  result. 

nines  v.  Driver,  100  Ind.,  315. 

Judgment  affirmed. 


iff 


Smith  v.  State. 


(17  Neb.,  358.) 
Larceny:  Admissions  —  Corpus  delicti  —  Evidence  —  Other  crime. 

Admissions. —  The  admissions  or  confessions  of  an  accused  on  trial  for 
a  crime,  made  to  an  individual  out  of  court,  witliout  proof  aliunde 
that  a  crime  has  been  committed,  will  not  justify  a  conviction. 

Evidence  of  other  crime. — As  a  general  rule,  subject  to  exceptions, 
the  guilt  of  the  accused,  or  his  participation  in  the  commission  of  an- 
other crime,  wholly  unconnected  with  that  for  wliich  he  is  put  on  his 
trial,  cannot  be  admitted  in  evidence  against  hiin. 


■f 


Error  from  Cass  County.    Tried  before  Pond,  J. 

Jiecson  c6  Sullivan,  for  ])laintiff. 
The  Attovneif-General,  for  defendant. 

CoHu,  C.  J.  The  plaintiff  in  error  was  indicted  for  the  lar- 
ceny of  a  gold  watch  and  other  articles  of  jewelry,  of  the 
value  of  $65.  Having  pleaded  not  guilt}^  to  the  charge,  he  was 
tried,  found  guilty,  and  sentenced  to  the  penitentiary  for  a  term 
of  two  years.     He  brings  the  cause  to  this  court  on  error. 


364 


AMERICAN  CRIMINAL  REPORTS. 


(-.1,    1 
i 

'i 


It  .appears  from  the  evidence,  as  presented  in  the  bill  of  ex- 
ceptions, that  the  watch  and  jewelry  were  lost  at  Atlantic,  in 
the  state  of  Iowa,  and  found  in  the  possession  of  the  plaintilf 
in  error  in  Cass  county,  in  this  st.ate.  Tiie  testimony  as  to  how 
the  property  came  into  the  possession  of  the  accused  is  as  fol- 
lows: 

"  Maud  Emery,  being  on  the  stand  as  witness  on  the  part  of 
the  state,  and  having  testified  that  she  was  acquainted  with  the 
accused,  was  interrogated: 

"(285)  Did  you  have  any  conversation  with  him  relative  U> 
the  stealing  of  any  property,  jeAvelry,  watches?    A.  Yes,  sir. 

"  (287)  You  may  state  when  it  was  and  where.  A.  It  was  in 
my  house,  something  over  a  month  ago. 

"  (288)  State  what  he  said  at  that  time.  A.  Told  me  he  had 
some  jewelry  in  his  possession,  stolen  by  a  man  named  Henry 
from  a  woman  in  Iowa.  lie  said  Henry  hid  it  in  the  barn,  and 
he  removed  it  to  a  better  place. 

"  (280)  Did  he  say  anything  further?    A.  Xo,  sir. 

"(21tO)  Say  anything  about  his  having  seen  Henry  ])nt  it 
there  ?  A.  Yes ;  he  said  he  saw  Henry  put  it  there.  I  le  folU)wt,'(l 
him  in  and  removed  it;  put  it  in  another  place.  He  said  lie 
saw  Henry  hide  the  jewelry,  aiul  he  removed  it  to  a  new  place. 

"(291)  "What  was  said  at  that  time,  i"  anything,  about  his 
keeping  the  jewelry?  A.  AVell,  he  said  th.y  were  slyer  than  In- 
Avas  if  they  got  it  again, —  the  nmn  that  stole  it. 

"  Alfie  Hasson,  also  a  witness  on  the  ))art  of  the  state,  hav- 
ing testilied  that  she  was  acquainted  with  the  accused,  her  ex- 
amination proceeded  as  follows : 

"(318)  Did  you  have  any  conversation  with  him  relative  to 
any  jewelry?    A.  Yes,  sir. 

"  (310)  You  may  state  where  it  was  and  when.  A.  It  was  at 
Miss  Claud's. 

"(320)  When?    A.  About  a  month  ago. 

"  (321)  You  may  state  what  he  said  at  that  time.  A.  He  said 
he  took  the  jewelry  from  where  it  Avashid,  and  showed  it  to  me. 

"(322)  What  did  he  show  you?  A.  A  Avatch  and  chain,  and 
tAA'o  rings. 

"(323)  What  kind  of  a  AA'atch  Avas  it,  silver  or  gold?  A. 
Gold. 

"(324)  Lady's  or  gentleman's?    A.  Lady's. 


SMITH  V.  STATE. 


366 


"(325)  What  kind  of  rings  did  ho  sho\v  you?    A.  Both  set 


^K 


rings. 


(320)  What  kind  of  a  chain  with  the  watch?    A.  Lady's 
jiokl  chain. 

"  (327)  Did  you  state  as  to  what  he  said  as  to  whe?  o  he  got 
tlioiii?  A.  Took  tliem  \yhere  they  had  been  hid.  Mr.  ilemy 
had  hid  tlicm. 

"(328)  Tell  you  where  that  was  that  Henry  hid  them?  A. 
Yes. 

"(329)  AV^hore?    A.  Jones'  livery-stable. 

"(33(1)  Whore  is  that?    A.  Fourth  street. 

"(331)  In  Plattsniouth,  Cass  county,  Nebraska?    A.  Yes. 

"(3:52)  .     .     . 

•'(333)  You  may  state  whether  anything  was  said  to  you 
about  taking  tl""s  jewelry  and  going  to  Omaha  at  that  time; 
if  so,  what  it  was.  A.  He  said,  go  to  Omaha  with  them, —  the 
jewelry. 

"  (33-i)  Just  state  fully  what  he  said  about  that.  A.  Did  not 
have  anything  ])articular  to  say.    Cannot  remember." 

There  was  evidence  that  the  Avatch  and  jewely  were  found 
on  the  person  of  the  accused  when  he  was  arrested. 

In  the  case  of  Pried  v.  State,  10  Neb.,  3J>3,  this  court  held 
that  "  a  confession  is  not  sufficient  evidence  of  the  eofpm  de- 
licti. There  must  be  other  evidence  that  a  crime  has  actually 
been  committed,  the  confession  being  used  to  connect  the  ac- 
cused with  the  crime."  The  law  as  thus  stated  is  fully  sus- 
tained by  the  authorities  there  cited,  as  well  as  by  the  other 
cases  cited  by  counsel  for  the  plaintiff  in  the  brief  in  the  case 
at  bar,  and  is  undoubtedly  correct. 

The  possession  by  an  accused  person  of  property  ])roved  to 
have  been  recently  stolen  is  sufficient  to  fasten  tlie  guilt  of  its 
larceny  u|)on  the  accused,  prhna  facie,  and  call  upon  him 
to  prove  the  innocence  of  his  possession.  Ihit  that  the  prop- 
erty was  stolen  is  the  capital  fact  and  must  be  proven ;  and 
this,  as  we  have  s;een,  cannot  be  done  simply  by  proof  of  the 
admission  of  the  accused,  or  his  confession  made  out  of  court ; 
and  tliere  being  no  evidence  in  this  case  that  the  watch  and 
jewelry  had  been  stolen  either  recently  or  remotely,  other  than 
the  admissions  of  the  accused,  made  out  of  court,  the  verdict 
is  without  sufficient  evidence  to  sustain  it. 


1 


**. 


866 


AMERICAN  CRIMINAL  REPORTS. 


There  is  another  point  in  the  case  which  it  is  deemed  proper 
to  mention.  Upon  the  trial  the  state  ofifered  in  evidence 
against  the  accused  the  record  of  a  proceeding  in  the  county 
court  wherein  the  accused  had  been  charged,  tried,  and  con- 
victed of  the  crime  of  petit  larceny,  in  the  stealing  of  one 
watch-chain  and  charm,  of  the  value  of  $25,  on  the  complaint 
of  one  George  M.  Goos-  This  record  was  admitted,  over  the 
objection  of  the  defendant.  At  the  hearing,  the  attorney-gen- 
eral, with  commendable  frankness,  admitted  that  for  tliis  error 
the  conviction  of  the  prisoner  would  have  to  be  reversed,  and 
declined  to  make  expense  to  the  state  in  an  effort  to  sustain  it. 
The  following  observations  are  made  in  view  of  tlie  new  trial 
in  the  case:  As  a  general  rule,  when  a  prisoner  is  on  trial  for 
a  crime,  his  guilt  or  participation  in  the  commission  of  another 
crime,  wholly  unconnected  witli  that  for  which  he  is  put  on  liis 
trial,  cannot  be  admitted  in  evidence  against  him.  But  this 
rule  has  a  great  many  exceptions,  in  cases  where  the  degree  of 
knowledge  with  which  the  act  charged  has  been  committed,  or 
the  motive  for  its  commission,  are  material  elements  of  the 
crime.  See  Eoscoe,  Crim.  Ev.  (7th  ed.),  p.  92,  and  note  1.  Also 
People  V.  Gray  (Sup.  Ct.  Cal.),  5  Pac.  Rep.,  240, —  an  ex- 
haustive case. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause 
remanded  for  further  proceedings  in  accordance  with  law. 


Weaver  v.  The  State. 


I 


(77  Ala.,  26.) 
Larceny  :  Money  or  property  found  or  picked  np  —  Intent  —  Confessions. 

1.  Confessions  —  Admissions  implied  from  silence.— The  statement  of 

the  justice  of  the  peace  before  wlioni  the  preliminary  examination  of 
the  defendant  was  had,  testifying  as  a  witness  on  the  trial,  "  that  he 
explained  the  charge  to  the  defendant,  and  asked  him  if  he  desired 
to  make  a  statement ;  that,  after  defendant  made  his  statement,  wit- 
ness told  him  his  own  statement  would  convict  him,  and  defendant 
made  no  reply," —  is  not  a  confession  or  admission  implied  from  silence, 
and  is  not  competent  evidence  against  the  defendant. 

2.  Money  or  property  found  or  picked  up  — Intent.— A  conviction  of 

larceny  cannot  be  had  against  a  person  wlio  finds  or  picks  up  moiiey 


I 


WEAVER  V.  THE  STATE. 


367 


which  lias  been  lost  or  dropped  by  the  owner,  unless  there  was  a  felo- 
nious intent  contemporaneous  with  the  finding  or  picking  up,  though 
it  is  not  necessary  that  such  intent  should  be  established  by  positive 
testimony ;  but,  if  the  defendant  took  the  money  from  the  person  of 
the  owner,  or  from  any  place  in  which  he  had  put  it,  such  taking  being 
tortious,  a  felonious  intent  subsecjuently  conceived  and  executed  would 
constitute  larceny. 


From  the  Circuit  Court  of  Tuskaloosa. 
Hon.  S.  H.  Sprott. 


Tried  before  the 


Wood  c&  Wood  and  Martin  c£'  MaH'm,  for  the  appellant. 
T.  N.  McCleUan,  attorney-general,  for  the  state. 


':J^^jr^r 


Stone,  C.  J.  The  witness  Long  testified  that  he,  as  justice 
of  the  peace,  presided  in  the  ])reliniinary  trial  of  the  accused, 
when  the  present  prosecution  was  instituted.  He  was  then 
permitted  to  testify,  against  the  objection  and  exception  of  the 
accused,  "  tliat  he  explained  the  charge  to  defendant,  and 
ask jd  him  if  he  desired  to  make  a  statement;  that,  after  de- 
fendant made  his  statement,  he,  witness,  told  him,  defendant, 
that  his  own  statement  would  convict  iiim,  to  wliich  defendant 
made  no  reply.''  The  legality  of  this  evidence  is  attempted  to 
be  maintained  on  the  alleged  ground  that  it  is  a  confession 
implied  from  silence.  Confession  of  Avhat?  Xot  of  any  crim- 
inating fact  in  the  case,  for  there  is  no  proof  of  any  fact,  nor 
of  anything  stated  as  fact.  Giving  it  its  full  scojie  and  import, 
it  was,  at  most,  the  expressed  opinion  of  the  witness  that  de- 
fendant's own  statement  of  the  facts  was,  in  itself,  enough  to 
convict  him;  and  if  defendant's  silence  be  construed  to  be  a 
confession,  it  can  only  be  a  confession  that  Long,  the  witness, 
believed  defendant's  statement  of  the  facts  to  be  sufficiently 
criminative  to  justify  his  conviction.  It  requires  neither  argu- 
ment nor  authority  to  show  that  Long's  opinion  of  the  suffl- 
cioncy  of  the  evidence  could  not  be  the  subject  of  legal  tes- 
timony against  the  accused;  and  we  cannot  perceive  how 
defendant's  confession  that  such  was  Long's  opinion  can  trans- 
form it  into  legal  evidence.  Long  testified  to  no  fact  stated  by 
him  to  the  defendant.  Let  us  sui)pose  the  latter  liad  attempted 
a  reply,  what  would  have  been  its  form?  To  negative  what 
had  been  said,  he  must  have  denied  that  such  was  Long's  opin- 


is: 


if. 

fft- 


36S 


AMERICAN  CRIMINAL  REPORTS. 


ion,  or  denied  that  such  opinion  was  justilied  by  his,  defend- 
ant's, statement. 

To  come  within  the  rule  we  have  been  considering,  the  state- 
ments must  be  made  as  of  fact,  pertinent  to  the  issue,  and  sucli 
as  would  ordinarily  elicit  or  provoke  a  reply.  They  must  bo 
stated  as  of  fact;  for,  as  a  rule,  only  facts,  whether  proved  in- 
depeiulently  or  by  admissions,  can  bo  given  in  evidence  to  a 
jury.  The  rule  is  correctly  declared  in  the  following  author- 
ities: 1  Greenl.  Ev.,  §  ld7  et  soj.;  Fuller  v.  Dean,  31  Ala.,  G54; 
Boh  V.  The  State,  32  Ala.,  5G0;  Camphell  v.  The  State,  55  Ala., 
80.  The  circuit  court  erred  in  admitting  the  evidence  of  the 
witness  Long. 

The  testimony  is  somewhat  indeterminate  as  to  how  the  de- 
fendant came  into  possession  of  the  money  alleged  to  liiivo 
been  stolen.  If  the  money  was  dropi)cd  or  lost  by  Freciniui. 
and  found  or  picked  uj)  by  the  defendant,  then,  to  justify  a 
conviction,  it  is  necessary  that  there  shouUl  have  boon  the  felo- 
nious intent  contemporaneously  with  the  linding  or  picking 
up;  aitd  unless  the  facts  and  circumstances  in  evidence  con- 
vince the  iurv  of  this  bevond  a  reasonable  doubt,  the  defend- 
ant,  on  this  liypotliosis  of  the  case,  cannot  be  convicted.  This 
intent,  however,  need  not  be  proved  by  positive  testimony,  but 
may  be  inferred  from  the  circumstances,  if  sufficient.  On  the 
other  hand,  if  the  defendant  did  not  lind  or  pick  up  the  money, 
but  took  it  from  Freeman's  person,  or  from  any  place  where 
he  had  put  it,  or  from  his  bed  where  he  lay,  then  the  taking 
was  a  trespass,  and  it  is  not  essential  to  his  guilt  that  he  should 
have  had  the  intention  to  convert  it  feloniousl}'  at  that  very 
moment.  Accpiiring  it  tortiously,  if  he  conceived  and  executed 
the  purpose  subsequently  to  convert  the  property  feloniously 
to  his  own  use,  this  would  constitute  larceny.  Oriygs  v.  The 
State,  58  Ala..  -t25;  Clark's  Manual,  §§  940,  i)41;  Mc3£ullen  v. 
The  State,  53  Ala.,  531. 

Reversed  and  remanded.  Let  the  defendant  remain  in  cus- 
tody until  discharged  by  due  course  of  law. 


'g 


STATE  V.  MAYBERRY.  869 


State  v.  Matberrt  and  akotheb. 

(88  Kan..  441.) 

Libel:  Aeewting  editor  of  drunkenneaa  — Evidence  of  intoxieation. 

1.  Newspaper  article. —  In  order  that  an  article  published  in  a  new^- 

papef  should  be  held  to  be  libelous  as  to  a  particular  person,  it  is  neces- 
sary that  tiie  language  of  the  article  sliould  be  such  that  persons  see- 
ing it  and  reading  it  should,  in  the  li^ht  of  surrounding  circumstances, 
be  able  to  understand  tlmt  it  referred  to  such  person. 

2.  AccusiNO  EDITOR  OF  DRUNKENNESS. — The  following  words,  published 

in  a  newspaper,  if  false  and  maliciouH,  as  tliey  are  alleged  to  be,  are, 
in  Kansa.s,  and  under  the  circumstances  of  this  case,  libelous,  to  wit : 
"Tlie  editor  of  t'le  Chronicle  has  been  intoxicated  on  several  occa- 
sions, and  that,  too,  after  he  was  elected  to  the  legislature  as  the  cham- 
pion of  prohibition." 
8.  Evidence  of  intoxication  —  Opinion  of  witness. —  Where  tl  e  defend- 
ant is  charged  with  having  published  that  the  prosecuting  witness  liad 
"been  intoxicated  on  several  occasions,"  he  may  prove,  by  witnesses 
acquainted  with  such  prosecuting  witness,  that  they  had  seen  him 
"acting  as  though  he  was  intoxicated." 

Appeal  from  Osage  District  Court. 

W.  A.  Johnston,  attorney -general,  and  Edioin  A.  Austin,  for 
the  state. 
Ellis  Lewis,  for  appellants. 

Valentine,  J.  This  was  a  criminal  prosecution  for  libel. 
The  defendants,  James  Mayberry  and  June  li.  Mayberry,  were 
charged  with  the  offense  of  libeling  John  E.  Ilastall,  the  editor 
of  the  Osage  County  Chronicle,  and  were  convicted  and  sen- 
tenced to  pay  a  fine  of  $25  each  and  the  costs  of  the  suit ;  and 
from  this  conviction  and  sentence  they  now  appeal  to  this 
court.  The  alleged  libel  was  an  article  published  in  the  Osage 
County  Democrat,  a  newspaper  published  in  the  city  of  Bur- 
lingame,  Osage  county,  Kansas,  of  which  newspaper  the  de- 
fendants were  the  editors  and  proprietors.  The  said  article 
reads  as  follows : 

"  Characteristic  of  Him. 

"  The  sneaking  innuendo  thrown  out  by  the  Chronicle  last 
week  at  ex-Gov.  Eobinson  and  Col.  Glick  is  characteristic  of 
the  hypocritical  puppy  who  wrote  it.     Both  gentlemen  alluded 
Vol.  V  — 24 


I 


370 


AMERICAN  CRIMINAL  REPORTS. 


'I : 

?<■■  • 

,'■1 

,:i  , 


to  by  our  subterranean  contemporary  are  too  well  known  and 
too  highly  esteemed  to  be  affected  by  cowardly  insinuations 
coming  from  a  source  so  notoriously  unreliable  as  the  Chron- 
icle, Coarse  insinuation  is  the  favorite  weapon  of  the  pol- 
troon, and  this  accounts  for  the  constabulary  organ's  use  of  it. 

"  Upon  assuming  editorial  management  of  this  paper,  we 
mentally  resolved  never  to  indulge  in  personalities,  except  for 
the  purpose  of  exposing  wrong  or  subserving  the  ends  of  jus- 
tice, and  consider  it  no  violation  of  our  rule  when  we  state  that 
the  editor  of  the  Chronicle  has  been  intoxicated  on  several 
occasions,  and  that,  too,  after  he  was  elected  to  the  legislature 
as  the  champion  of  prohibition.  We  have  evidence  in  our 
possession  of  the  truth  of  the  above  statement,  and  give  it  to 
the  public  that  they  may  know  what  kind  of  a  creature  it  is 
that  indulges  in  covert  insinuations  against  such  men  as  Gov. 
Kobinson  and  Col.  Glick,  and  the  large  and  (with  the  excep- 
tion of  Rastall  and  a  few  kindred  spirits)  respectable  audience 
that  gave  them  such  a  hearty  greeting." 

In  the  court  below  the  defendants  moved  to  quash  the  infor- 
mation upon  which  they  were  charged,  upon  the  ground  that 
it  did  not  state  facts  sufficient  to  constitute  a  public  offense, 
which  motion  the  court  overruled,  and  the  defendants  severally 
excepted;  and  this  is  the  firet  ruling  of  the  court  below  of 
which  the  defendants  now  complain.  The  defendants  claim 
that  the  information  is  insufficient  for  the  following  reasons: 

"  i^«V«^,  that  there  are  no  averments  in  the  information,  no 
statement  of  any  such  facts  as  make  it  apparent  that  the  per- 
sons who  knew  him  would,  on  reading  the  article  copied  in  the 
information,  perceive  that  John  E.  Rastall,  the  prosecuting 
witness,  was  referred  to  or  criticised ;  ftecond,  that  the  facts, 
if  properly  av^erred  or  stated,  are  insufficient  to  constitute  a 
libel." 

Of  course,  in  order  that  the  foregoing  article  should  be  held 
to  be  libelous  as  to  John  E.  Rastall,  it  is  necessary  that  the 
language  of  the  same  should  be  such  that  persons  seeing  it  and 
reading  it  should,  in  the  light  of  surrounding  circumstances, 
be  able  to  understand  that  it  referred  to  Rastall;  but  we  think 
the  article  answers  this  description.  The  words  "Chronicle" 
and  "  editor  of  the  Chronicle,"  and  "  Rastall,"  and  other  words 
used  in  the  article  referring  to  Rastail  and  his  newspaper,  make 


!\-  m 


bTATE  V.  MAYBERRY. 


371 


\    ''    '    'mm 


vn  and 
nations 
Chron- 
he  pol- 
le  of  it. 
per,  we 
jept  for 
1  of  jus- 
ate  that 
several 
^islature 
in  our 
KG  it  to 
ire  it  is 
as  Gov. 
3  excep- 
ludience 

he  infor- 
iind  that 

offense, 
severally 
below  of 
its  claim 
reasons; 
ation,  no 

the  ])er- 
ed  in  the 
^secuting 
he  facts, 
istitute  a 

d  lie  held 
that  the 
ng  it  and 
instances, 
we  think 
hronicle" 
her  words 
,pcr,  make 


it  very  clear  that  John  E.  Rastall,  the  editor  and  publisher  of 
the  Osage  County  Chronicle,  a  newspaper  published  in  Osage 
county,  Kansas,  was  intended.  Besides,  the  information 
charges  that  the  alleged  libelous  article  was  publislied  "of  and 
concerning  the  said  Jolin  E.  Rastall,"  and  a  profusion  of  innu- 
endoes is  inserted  in  the  information,  making  it  clear  beyond 
all  possible  doubt  that  Rastall  was  the  part;  intended  by  the 
article.  And  the  article  itself  is  go(jd  English,  and  uot  ob- 
scure or  enigmatical,  or  difficult  of  comprehension. 

We  also  think  that  the  matter  contained  in  tho  article,  if 
false  and  malicious,  as  is  alleged  in  the  information,  is  libelous. 
The  article  charges  "  that  the  editor  of  the  Chronicle  has  been 
intoxicated  on  several  occasions,  and  that,  too,  after  he  was 
elected  to  the  legislature  as  the  champion  of  prohibition." 
And  the  article  also  uses  many  e|)ithets  in  connection  with  the 
above  charge  "tending  to  provoke  him  to  wrath,  or  to  expose 
him  to  public  hatred,  contempt  or  ridicule,  or  to  deprive  him 
of  the  benefits  of  public  confidence  or  social  intercourse." 
And  the  information  also  alleges  that  all  the  foregoing  charges 
agaiii;:t  Rastall  were  false  and  malicious.  In  this  state  "a  libel 
is  the  malicious  defanuition  of  a  person,  made  public  by  any 
printing,  writing,  sign,  ])icture,  representation  or  effigy,  tend- 
ing to  provoke  him  to  wrath  or  expose  him  to  public  hatred^ 
contempt  or  ridicule,  or  to  deprive  him  of  the  benefits  of  pub- 
lic confidence  and  social  intercourse,"  etc.  Crimes  and  Pun- 
ishments Act,  §  270.  Rut  "  the  truth  may  be  given  in  evidence 
to  the  jury;  and  if  it  shall  appear  that  the  alleged  libelous 
matter  was  published  for  justifiable  ends,  the  accused  shall  be 
acquitted."    Const.,  "Bill  of  Rights,"  g  11. 

It  is  also  claimed  on  the  part  of  the  defendants  that  the 
court  below  erred  in  excluding  certain  evidence.  The  record 
with  respect  to  this  matter  reads  as  follows : 

"  The  state  gave  evidence,  written  and  oral,  tending  to  show 
the  allegations  contained  in  the  information,  and  then  rested ; 
that  thereupon  the  defendants  otfered  and  produced  competent 
witnesses  who  [were]  sworn  and  testified  in  said  cause,  and 
gave  testimony  tending  to  prove  that  John  E.  Rastall  had  been 
intoxicated,  as  alleged  in  the  publication  set  forth  in  the  infor- 
mation; and  thereafter  the  defendants  offeretl  and  produced 
George  Hoover,  a  competent  witness  in  said  cause,  and  he  was 


1i '  I 


\ 


372 


AMERICAN  CRIMINAL  REPORTS. 


IfV', 


duly  sworn  to  testify  in  said  cause;  and  the  said  George 
Hoover  testified  as  follows:  'I  reside  in  Burlingame;  have 
been  a  resident  of  Osage  off  and  on  for  about  twenty  years; 
am  acquainted  witli  John  E.  Rastall.'  Question  hj  chf end  ants' 
counsel.  '  Did  you  ever  see  him  under  the  influence  of  intoxi- 
cating liquors?'  Answer.  'Not  that  I  know  of;  no,  sir.' 
Question.  'What  did  you  say?'  Answer.  'Not  tliat  I  know 
of.'  Question  hy  defendants''  counsel.  '  Well,  did  you  ever  see 
hira  when  he  acted  as  though  he  was  under  the  influence  of 
liquor?'  To  this  question  the  state  objected  as  iiiconipetont 
and  irrelevant  and  immaterial.  Question  hy  defendants''  courir 
sel.  '  I  Avill  ask  you  whether  you  ever  saw  him  act  as  thouirh 
he  was  intoxicated?'  To  this  question  the  state  objected,  and 
the  court  sustained  said  objection  and  refused  to  allow  the 
witness  to  answer  said  question  by  the  couusel  for  said  defciul- 
ants;  to  which  ruling  of  the  court  the  defendants  at  the  time 
excepted.  Whereupon  the  defendants,  by  their  counsel,  Ellis 
Lewis,  offered  to  prove  by  said  witness,  (leorge  Hoover,  that 
both  before  and  after  the  election  of  John  E.  Ilastall  to  the 
legislature — that  is,  after  the  5th  and  12th  days  of  Octuhor, 
1882,  and  prior  thereto  —  the  witness  saw  John  E.  liastall 
acting  as  though  he  was  intoxicated;  and  also  defondaiits 
offered  to  prove  by  said  witness  that  said  John  E.  I^astall  at 
both  these  times,  both  before  and  afterwards,  acted  as  this 
witness  says  he  (the  witness)  acted  when  he  ^the  witness)  was 
intoxicated.  To  which  testimony  the  state  objected,  and  the 
objection  was  by  the  court  sustained,  and  said  testimony  ex- 
cluded by  the  court,  and  the  defendants  at  the  time  exce[)ted 
to  the  ruling  of  the  court  in  sustaining  said  objection  and 
excluding  said  testimony'." 

We  can  scarcely  understand  why  the  court  below  refused  to 
permit  the  defendants  to  show  by  the  witness  Hoover  that  he 
saw  Kastall  "acting  as  though  he  was  intoxicated,"  The  wit- 
ness had  been  a  resident  of  Osage  county,  off  and  on,  for  about 
twenty  years,  lie  was  acquainted  with  Kastall ;  had  worked 
Avith  him  in  the  same  office  for  six  or  seven  months.  And  in- 
toxication may  be  proved  by  showing  how  the  person  supposed 
to  be  intoxicated  acted.  And  the  witness  mav  not  only  state 
how  the  supposed  intoxicated  person  acted,  but  he  may  also 
state  whether  he  appeared  to  be  intoxicated  or  not.     Vanfmr 


; « . 


HUGHES  V.  STATE. 


373 


V.  Sliker,  33  N".  J.  Law,  507;  People  v.  Eastwood^  14  K  Y.,  565. 
And  the  witness  may  give  his  opinion  as  to  whether  the  sup- 
posed intoxicated  person  was  intoxicated  or  not.  Lawson  on 
Exp.  &  Op.  Ev.,  473  et  seq.,  and  cases  there  cited ;  Rogers  on 
Exp.  Test.,  5 ;  1  Greenl.  Ev.,  §  440a.  It  does  not  appear  that 
any  objection  was  made  to  the  witness  himself,  because  of 
any  supposed  incompetency  on  his  part  to  testify  with  respect 
to  this  matter,  but  the  objection  was  made  to  the  testimony 
itself  as  being  incompetent,  irrelevant  and  immaterial.  Any 
person  is  competent  to  testify  with  regard  to  the  acts  of  an- 
other which  he  has  seen.  He  is  competent  to  testify  whether 
such  person  acted  as  though  he  was  intoxicated  or  not,  and  he 
may  give  his  opinion  with  reference  thereto.  See  the  authori- 
ties above  cited.  All  persons  of  sufficient  age  and  understanding 
are  supposed  to  have  had  sufficient  experience  for  this  purpose. 
We  think  the  evidence  excluded  was  competent,  relevant  and 
material.  The  gist  of  the  alleged  libel  was  that  the  defend- 
ants had  falsely  and  maliciously  published  that  Rastall  had 
been  intoxicated.  Now,  was  it  true  or  false  that  Ilastall  had 
been  intoxicated?  Ti^e  defendants,  under  the  constitution, 
had  the  right  to  prove  that  it  was  true,  and  the  evidence  which 
they  offered  to  introduce  tended  to  prove  the  same.  We  think 
the  court  below  erred  in  excluding  this  evidence,  and  for  this 
error  its  judgment  must  be  reversed  and  the  cause  remanded 
for  a  new  trial. 

HoETON,  0.  J.,  concurring.    Johnston,  J.,  not  sitting. 


■■'■il      1 


ii 


■  '■ :  ..{ 


Hughes  v.  State. 

(103  Ind.,  844.) 

Maucious  trespass  upon  real  estate:  Title. 

1.  Malicious  trespass  upon  real  estate.— In  a  proHecution  for  mali- 
cious trespass  for  injury  to  real  estate,  the  title  to  the  real  estate  must 
be  proved  to  be  in  the  pe    on  named  in  the  indictment. 

3.  Not  PROPER  TO  TRY  QUESTION  OF  TITLE.— The  machinery  of  the  crimi- 
nal law  cannot  be  invoked  to  redress  merely  private  grievances,  and 
while  a  civil  action  of  trespass  may  be  maintained  in  ii  i-lass  of  cases 
to  determine  a  question  of  title,  a  prosecution  for  nitiliuious  trespass  is 
not  proper  for  any  such  purpose. 


y-^ 


374 


AMERICAN  CRIMINAL  REPORTS. 


'\i 


From  the  Fayette  Circuit  Court. 

li.  D.  Marshall  and  W.  C.  Forrey,  for  appellants. 
F.  T.  Hord,  attorney -general,  R.  Connor,  11.  L.  Frost  and 
Z.  H.  Stanford,  prosecuting  attorney,  for  the  state. 

NiBLACK,  J.  An  affidavit  was  filed  before  a  justice  of  the 
peace  of  Fayette  county,  charging  Martin  Hughes,  Louis  P. 
Snyder,  John  Remington,  Peter  Bainbridge  and  others  with 
having,  on  the  13th  day  of  June,  1884,  unlawfully,  maliciously 
and  mischievously  injured  the  real  estate  of  one  Abraiu  B. 
Conwell  by  then  and  there  unlawfully,  maliciously  and  mis- 
chievously tearing  down  and  removing  a  rail  fence  situate 
upon  said  real  estate,  to  the  damage  of  said  real  estate  and  of 
the  said  Conwell  in  the  sum  of  $25.  The  justice  found  the 
defendants,  particularly  named  as  above,  guilty,  and  assessed 
and  adjudged  a  fine  against  each  one  of  them  severally.  Upon 
an  appeal  to  the  circuit  court  Hughes,  Snyder  and  Bainbridge 
were  tried  together,  the  trial  resulting  in  a  verdict  and  judg- 
ment against  all  of  them.  A  question  was  made  at  the  proper 
time  upon  the  sufficiency  of  the  evidence  to  sustain  the  ver- 
dict, and  that  is  really  the  controlling  question  now  presented 
for  our  decision. 

The  leading  facts  which  gave  rise  to  this  prosecution  were 
substantially  as  follows:  On  the  14th  day  of  March,  1854. 
the  Junction  Railroad  Company,  of  whicli  the  Cincinnati. 
Hamilton  &  Indianapolis  Railroad  Compan\'  is  the  successor, 
purchased  a  tract  of  land,  now  in  the  cit}'  of  Connersville, 
containing  a  fraction  over  eleven  .acres,  on  wliich  its  freight 
and  passenger  depots  were  afterwards  placed,  and  through 
which  its  main  track  and  several  side  tracks  were  lai<l.  At  the 
time  of  the  purchase  a  starting  point  for  the  survey  an<l  tloscrip 
tion  of  the  tract  of  land  covered  by  it  was  agreed  upon,  but  no 
deed  was  then  made.  In  April,  186C,  Conwell  laid  out  and 
platted  a  piece  of  land,  contiguous  to  the  tract  sold  by  liim  to 
the  railroad  company,  into  lots  and  streets  known  as  "  Con  well's 
Northeast  Addition  to  Connersville."  A  question  afterwards 
arose,  and,  as  we  infer  from  the  evidence,  still  remains  un 
settled,  whether  this  addition  to  Connersville  did  not  lap  over 
onto  and  encroach  upon  the  railroad  tract  of  land.  In  April, 
1871,  Conwell  executed  to  the  railroad  company  a  deed  of  con 


HUGHES  V.  STATE. 


375 


voyance  for  a  tract  of  land  containing  a  fraction  over  eleven 
acres,  which  was  intended  and  mutually  understood  as  embrac- 
ing the  precise  land  bargained  for  by  the  railroad  corapa'^y  in 
the  first  instance.  Soon  after  this  deed  was  executed,  some 
one  erected  a  rail  fence  along  what  the  railroad  company 
claimed  to  be  the  northern  boundary  of  the  tract  of  land  thus 
conveyed  to  it  by  Conwell,  and  the  company  continued  there- 
after to  claim  title  up  to  that  fence.  Some  time  after  this  fence 
was  erected,  nothing  showing  how  long,  Conwell  became  dis- 
satisfied with  its  location  as  a  boundary  line  between  him  and 
the  railroad  company,  and  asserted  a  claim  to  a  strip  of  ground 
south  of  the  fence,  which  afterwards  became  disputed  territory 
between  him  and  the  company.  With  the  coming  of  the  spring 
of  1884,  tlie  controversy  over  this  strip  of  ground  became  more 
definite  and  aggressive.  Early  in  May  of  that  year  Conwell 
caused  a  new  survey  to  be  made  of  the  premises,  and  that  sur- 
vey resulted  in  staking  off  and  marking  a  line  about  four  rods 
further  south  than  the  fence  as  the  supposed  true  boundary 
line.  The  railroatl  company  refused  to  recognize  tlie  correct- 
ness of  that  survey,  and  so  the  controversy  continued.  In  the 
meantime  some  efforts  looking  to  an  amicable  adjustment 
were  made  by  the  company,  under  circumstances  which  gave 
some  promise  of  success.  With  the  view,  apparently,  of  bring- 
ing matters  to  a  crisis,  Conwell,  on  the  13th  day  of  June,  1884, 
caused  the  old  fence  to  be  moved  further  south,  and  put  up  on 
or  near  the  lino  indicated  by  the  new  survey.  The  chief  en- 
gineer of  the  Cincinnati,  Hamilton  &  Indianapolis  Eailroad 
Company,  which  had  some  years  previously  succeeded  to  the 
property  and  franchises  of  the  Junction  Railroad  Company, 
had  at  the  time  his  office  in  Cincinnati,  Ohio,  and  upon  being 
informed  of  the  change  of  the  line  of  fence  telegraphed  to  the 
appellant  Snyder,  who  was  one  of  his  subordinate  officers  at 
( "onnersville,  to  have  the  newly  put  up  fence  removed.  Sny- 
der accordingly,  at  about  5  o'clock  in  the  afternoon  of  the 
same  day  on  which  it  was  erected,  assembled  a  company  of 
men  in  the  employment  of  the  railroad  company,  and  caused 
the  new  fence  in  question  to  be  thrown  down  and  the  rails 
scattered.  Hughes  and  Bainbridge,  the  other  appellants,  were 
members  of  the  company  of  men  thus  assembled  by  Snyder, 
and  assisted  in  the  work  of  throwing  down  the  fence. 


B 


V 


376 


AMERICAN  CRIMINAL  REPORTS. 


■S'*^- 


Ei  y,; 


W\ 


ii 


It  must  be  borne  in  mind  that  the  charge  in  this  case  was  for 
an  alleged  injury  done  to  the  real  estate  of  Con  well  by  tearin;f 
down  and  removing  a  fence  situate  upon  and  connected  '.vitli 
such  real  estate,  and  not  for  any  injury  which  may  have  been 
committed  upon  the  fence  itself.  To  sustain  the  charge  made 
by  the  affidavit  it  was  consequently  necessary  to  prove  that 
the  real  estate  upon  which  the  fence  stood  belonged  to  Con- 
well.  Powell  V.  State,  2  Ind.,  550;  Keinhard,  Crim.  Law,  94. 
Taken  as  a  whole,  there  is  no  evidence  either  proving,  or  fairly 
tending  to  prove,  that  the  title  to  any  part  of  the  disputed  ter- 
ritory was  in  Conwell,  or  that  he  had  ever  been  in  possession 
of  that  strip  of  ground.  The  fair  inference  from  the  evidence 
was  that  Conwell  had  for  a  considerable  time  asserted  a  claim 
of  title  to  the  disputed  territory,  and  that  both  he  and  his  agent 
had  perhaps  spoken  of  it  and  referred  to  it  as  his  land,  but  no 
evidence  was  offered  to  formally  sustain  that  claim  of  title,  and 
nothing  came  out  incidentally  which  could  be  properly  con- 
strued as  sustaining  such  a  claim. 

Conceding  that  the  railroad  tract  of  land  did  not  extend  be- 
yond the  line  mdicated  by  the  last  surveys  it  did  not  follow,  in 
the  absence  of  any  evidence  on  the  subject,  that  Conwell  owned 
the  land  on  the  other  side  up  to  that  line.  Proof  that  the  rails 
belonged  to  Conwell  was  not  sufficient.  If  proof  of  property 
in  and  injury  to  the  fence  or  rails  were  relied  upon  for  a  con- 
viction, then  the  charge  ought  to  have  been  for  injury  to  the 
fence-rails,  and  not  to  the  land.  Then,  also,  the  evidence 
tended  to  prove,  and  as  to  that  there  was  seemingly  no  conflict, 
that  at  the  time  the  chief  engineer  gave  the  order  for  the 
removal  of  the  fence  he  was  under  the  impression  that  the  land 
on  which  it  had  been  placed  belonged  to  the  railroad  company, 
and  had  no  other  object  in  view  than  the  protection  of  the 
rights  of  the  company;  also,  that  the  men  who  obeyed  liis 
order,  and  threw  down  the  fence,  did  so  under  the  belief  that 
they  were  simply  obeying  a  lawful  order,  and  doing  what  was 
presumably  for  the  best  interests  of  the  company.  A  civil 
taction  for  trespass  may  be  maintained  in  a  class  of  cases  for  the 
purpose  of  testing  and  settling  a  question  of  title,  but  a  charge 
of  malicious  trespass  cannot  be  rightfully  prosecuted  for  such 
a  purpose,  since,  however  conclusive  the  evidence  of  title  in  the 
prosecuting  witness  may  be,  the  defendant  may  nevertheless 


'<>-i 


REG.  V.  FRANKLIN. 


377 


but  no 


be  acquitted  on  proof  of  a  bona  fide  claim  of  title,  and  tho 
absence  of  any  malicious  intent  in  the  transaction.  Besides, 
the  machinery  of  the  criminal  law  cannot  be  properly  invoked 
for  the  redress  of  merely  private  grievances.  Moore,  Crim. 
Law,  §  987  et  seq.;  Iloxce  v.  State,  10  Ind.,  492;  Windsor  v.  State, 
13  Ind.,  375;  State  v.  Bush,  29  Ind.,  110;  Palmer  v.  State,  45 
Ind.,  388 ;  Daioson  v.  State,  52  Ind.,  478 ;  Lossen  v.  State,  62  Ind,, 
437;  Gundy  v.  State,  63  Ind.,  528. 

The  evidence,  as  we  find  it  in  the  record,  impresses  us  very 
strongly  with  the  belief  that  the  controversy  involved  in  this 
case  is  one  which  ouglit  to  have  been  determined  by  an  appro- 
priate civil  action,  and  not  by  a  resort  to  a  criminal  prosecution. 
Everything  considered,  we  feel  constrained  to  hold  that  the 
verdict  was  not  sustained  by  sufficient  evidence.  The  judg- 
ment is  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings. 


fi-ij 


■tii 


'« 


Reg.  v.  Franklin. 

(15  Cox's  C.  C,  163.) 

Manslattohtek :  Unlawful  act  —  Negligence. 

1.  Civn.  WRONG. — The  mere  fact  of  si  civil  wrong  committed  by  one  per- 
son against  another  ought  not  to  ha  UHe<l  as  an  incident  which  is  a  nec- 
essary step  in  a  criminal  case,  apart  from  the  question  of  criminal 
negligence. 

S.  Neoijoent  or  wanton  act.— Therefore  the  mere  fact  of  a  person 
wrongfully  taking  up  a  box  from  a  refreshment  stall  on  a  sea  pier  and 
wantonly  throwing  it  into  the  sea,  and  thereby  unintentionally  caus- 
ing the  death  of  another  bathing  in  the  sea,  is  not  per  se,  and  apart 
from  the  question  of  negligence,  sufficient  to  constitute  the  offense  of 
manslaughter. 

Southeastern  Circuit.     Sussex  Assizes.    Before  Field,  .J. 

Charles  Harris  Franklin  was  indicted  before  Field,  J.,  at 
Lewes,  for  the  manslaughter  of  Craven  Patrick  Trenchard. 

Tlie  facts  were  as  follows: 

On  the  morning  of  the  25th  day  of  July,  1882,  the  deceased 
was  bathing  i:i  the  sea  from  the  "West  Pier,  at  Brighton,  and 
swimming  in  the  deep  water  around  it.  Tho  prisoner  took  up 
a  gootl-sized  box  from  tho  refreshment  stall  on  the  pier  and 


i- 


t'SI 

fit. 
.  ■'" " 

it'. 


878 


AMERICAN  CRIMINAL  REPORTS. 


waiitonly  threw  it  into  the  sea.  Unfortunately  the  box  struck 
the  deceased,  C.  P.  Trenchard,  who  was  at  that  moment  swim- 
ming underneath,  and  so  caused  his  death. 

Gore,  for  the  prosecution,  urged  that  it  would,  apart  from 
the  question  of  negligence,  be  sufficient  to  constitute  the  offense 
of  manslaughter,  that  the  act  done  by  the  prisoner  was  an 
unlawful  act,  which  the  facts  clearly  showed  it  to  be,  and  cited 
the  case  of  Hex  v,  Fenton,  1  Lewin's  Cr.  Cas.,  17V>.  This  case 
is  referred  to  in  1  Russell  on  Crimes,  038.  "  If  death  ensues 
in  consequence  of  a  wrongful  act,  which  the  party  who  com- 
mits it  can  neither  justify  nor  excuse,  it  is  manslau<:  iter.  An 
indictment  charged  that  there  was  a  scaffolding  la  a  certain 
coal  mine,  and  that  the  prisoners,  by  throwing  large  stones 
down  the  mine,  broke  the  scaffolding,  and  that,  in  consequence 
of  the  scaffolding  being  so  broken,  a  corf  in  which  the  deceasod 
was  descending  the  mine  struck  against  a  beam  on  which  the 
scaffolding  had  been  supported,  and  by  such  striking  the  corf 
was  overturned  and  the  deceased  precipitated  into  the  mine 
and  killed.  Tindal,  C.  J.,  said :  If  death  ensues  as  the  conse- 
quence of  a  wrongful  act,  wliich  the  party  who  commits  it  can 
neither  justify  nor  excuse,  it  is  not  accidental  death,  but  man- 
slaughter. If  the  wrongful  act  was  done  under  circumstances 
which  show  an  intent  to  kill  or  do  any  serious  injury  in  tlic 
particular  case,  or  any  general  malice,  the  offense  becomes  that 
of  murder.  In  the  present  instance  the  act  was  one  of  nu  rf; 
wantonness  and  sport,  but  still  the  act  was  wrongful  —  it  wa;' 
trespass.  The  only  question,  therefore,  is,  whether  the  (Jo 
of  the  party  is  to  be  fairly  and  reasonably  considered  as  a  coii- 
sequence  of  such  wrongful  act.  If  it  followed  from  sucli 
wrongful  act,  as  an  effect  from  a  cause,  the  offense  is  man 
slaughter;  if  it  is  altogether  unconnected  with  it,  it  is  acci- 
dental death," 

Field,  J.  This  is  a  question  of  great  importance,  for  if  1 
must  follow  the  ruling  of  tiie  very  learned  judge  in  R<'<j.  o. 
FenUm  {uhi  nuj?.),  it  will  be  unnecessary  to  go  into  the  <piestii)n 
whether  the  prisoner  was  guilty  oi  negligence.  I  will  consult 
my  brother  Mathew  upon  the  point. 

Field,  J.,  after  a  short  interval,  returned  into  court  and  said: 
I  am  of  opinion  that  the  case  must  go  to  the  jury  upon  the 
broad  ground  of  negligence,  and  not  upon  the  narrow  ground 


r? 


i 


MOSS  r.  COMMONWEALTH. 


379 


proposed  by  the  learned  counsel,  because  it  seems  to  me  —  and 
I  may  say  that  in  this  view  my  brother  Matiiew  agrees  —  that 
the  mere  fact  of  a  civil  wrong  committed  by  one  person  against 
another  ought  not  to  bo  used  as  an  incident  which  is  a  neces- 
sary step  in  a  criminal  case.  I  have  a  great  abhorrence  of 
constructive  crime.  We  do  not  think  tlie  case  cited  by  the 
counsel  for  the  prosecution  is  binding  upon  us  in  the  facts  of 
this  case,  and,  therefore,  the  civil  wrong  against  the  refresh- 
ment-stall keeper  is  immaterial  to  this  charge  of  manslaughter. 
I  do  not  think  that  the  facts  of  this  case  bring  it  clearly 
within  the  principle  laid  down  by  Tindal,  C.  J.,  in  liey.  v.  Fen- 
ton.  If  I  thought  this  cast-  was  in  principle  like  that  case,  I 
would,  if  requested,  state  a  case  for  the  opinion  of  the  court  of 
criminal  appeal.     But  I  do  not  think  so. 

It  was  not  disputed  that  the  prisoner  threw  the  box  over  the 
pier,  that  the  box  fell  upon  the  boy,  and  the  death  of  the  boy 
was  caused  by  the  box  falling  upon  him. 

Gill,  for  the  prisoner,  relied  upon  the  point  that  there  was 
not  proved  such  negligence  as  was  criminal  negligence  on  the  ' 
part  of  the  prisoner. 

FiKLD,  J.,  in  summing  up  the  case  to  the  jury,  went  care- 
fully through  the  evidence,  pointing  out  how  the  facts  as  ad- 
mitted and  proved  affected  the  prisoner  upon  the  legal  question 
as  he  had  explained  it  to  them. 

The  jury  returned  a  verdict  of  guilty  of  manslaughter. 

Guilt}/. 

The  prisoner  was  sentenced  to  two  months'  imprisonment. 


,'W: 


Moss  V.  Commonwealth. 

(107  Pa.  St.,  267.) 

Manslaughter:  Practice  — Separation  of  Jury. 

1.  Absence  op  jukor  by  permission  of  court.— Wiiere,  in  pursuance  of 
an  indictment  for  murder,  a  verdict  for  manslaughter  wsis  rendered 
and  sentence  imposed  therefor,  and  it  appeared  that  during  an  ad- 
journment of  tiie  trial  one  of  tlie  jurors  was  absent  for  two  days  in 
the  custody  of  a  sworn  officer,  and  by  permission  of  the  court,  under 
suitable  instructions,  such  separation  of  the  jury  is  not  sufficient 
ground  for  reversal  of  the  judgment. 


380 


AMERICAN  CRIMINAL  REPORTS. 


8.  ROLB  OTHERWISE  ON  CONVICTION  FOR  A  CAPITAL  OFFENSE.— That  the 
rule  is  otherwise  where  the  conviction  is  for  a  capital  offense ;  and  the 
commonwealth  must  then  show  affirmatively  that  no  improper  in- 
fluence operated  on  the  mind  of  the  juror  during  his  absence. 

October  7,  1884.  Before  Mercur,  C.  J.,  Gordon,  Paxson, 
Trunkey,  Sterrett,  Green  and  Clark,  JJ. 

Error  to  the  court  of  oyer  and  terminer  of  "Westmoreland 
county,  of  October  term,  1884. 

Indictment  of  John  T.  Moss  for  the  murder  of  James 
McGugan.    Plea,  not  guilty. 

Hazlitt  and  11.  W.  Weir  (with  whom  was  Williams),  for 
plaintiff  in  error. 

Jac.  Turney  (with  whom  were  McAfee,  Atkinson  tfe  PeopJe-i 
and  S.  A.  Kline),  for  defendant  in  error. 

Chief  Justice  Meucur  delivered  the  opinion  of  the  court: 
The  verdict  of  the  jury  has  removed  the  higher  grade  of 
crime  and  reduced  the  case  to  one  of  manslaughter.  If  the 
conviction  had  been  of  a  capital  offense,  the  observance  of  a 
more  stringent  rule  would  be  required.  The  case  of  Goersen 
V.  Commonwealth,  decided  .at  the  present  term  (10  Out.,  477), 
was  a  conviction  of  murder  in  the  first  degree.  The  sickness 
of  a  juror  had  caused  his  separation  for  medical  treatment. 
The  commonwealth  there  assumed,  and  we  held  correctly,  the 
obligation  of  showing  affirmatively  that  no  improper  influence 
operated  on  the  mind  of  the  juror  during  his  separation.  In 
case  of  a  conviction  of  a  capital  offense  the  fact  of  separation 
further  than  is  necessarily  required  to  enable  the  jurors  to  per- 
form their  duties  as  such,  and  under  the  care  of  a  sv  orn  officei", 
creates  a  presumption  of  improper  influence,  which  the  com- 
monwealth must  rebut  or  remove  by  clear  and  satisfactory 
evidence.  In  the  present  case,  we  think  it  would  have  been 
well  on  the  return  of  the  juror  to  have  inquired  of  him,  and 
of  the  officer  in  charge,  whether  anything  was  said  or  done  in 
the  presence  of  the  juror  tending  to  influence  his  action  in  the 
case.  As,  however,  there  is  no  evidence  nor  averment  of  any 
such  influence,  we  cannot  hold  the  mere  separation  of  the 
juror,  in  the  custody  of  a  sworn  officer,  and  by  the  permission 
of  the  court,  is  such  an  act  as  to  call  for  a  reversal  of  the 
judgment. 


LEWIS  V.  THE  STATE. 


381 


Th.e  strictness  of  the  early  English  rule  in  excluding  jurors 
from  all  outside  intercourse,  in  cases  not  capital,  is  very  much 
relaxed  in  this  country.  In  view  of  the  verdict,  and  for  the 
purpose  we  are  now  considering,  we  think  the  same  rule  should 
be  applied  as  if  the  prisoner  had  been  indicted  and  tried  for 
manslaughter  only.  In  siicii  a  case  jurors  may,  in  the  discre- 
tion of  the  court,  bo  permitted  to  separate  after  being  duly 
cautioned,  without  the  creation  of  any  legal  i>resumption  tliat 
undue  influence  thereby  operated  on  their  minds.  Whatever 
is  necessary  to  preserve  the  purity  of  trial  by  jury  must  be  ad- 
hered to  and  strictly  observed.  Whatever  is  not  necessary  to 
Secure  a  fair  and  impartial  trial  must  not  be  so  magnified  as  to 
defeat  the  ends  of  justice.  As  we  do  not  consider  this  to  be  a 
capital  case,  but  one  of  the  grade  for  which  the  prisoner  was 
convicted,  we  deem  it  unnecessary  to  refer  to  the  authorities 
cited.  We  merely  say  they  are  not  applicable  to  this  case, 
which  is  for  a  lesser  crime. 

Judgment  affirmed. 


;-Jl; 


n:! 


Lewis  v.  The  State. 

(72  Ga.,  164.) 

Manslauohtbr:  Murder — Intent  —  Evidence — Declarations  of  accused. 

1.  Death  of  child  as  the  result  op  cruelty  and  want  of  proper 

FOOD. —  Death  en'^uing  in  consequence  of  the  wilful  omission  of  a  duty 
is  murder;  deat'i  ensuing  in  consequence  of  the  negligent  omission  of 
a  duty  is  manslaughter.  Therefore,  where  the  death  of  a  child  re- 
sulted from  cruelty  and  want  of  proper  food  and  clothing,  the  ])erson 
whose  ''.i;ty  it  was  to  maintain  and  care  for  it,  and  whose  conduct  re- 
sulted in  its  death,  was  guilty  of  murder,  if  the  acts  were  wilfully 
done;  and  of  manslaughter,  if  they  were  negligently  done,  without 
malice. 

2.  Death  from  commission  of  unlawful  act.— If  the  death  results 

from  the  commission  of  an  unlawful  act,  which,  in  its  conseiiuences, 
naturally  tends  to  destroy  the  life  of  a  lunnan  being,  although  the 
killing  itself  be  not  intended,  the  offense  is  murder. 
8.  Declarations  of  accused.— The  sayings  of  the  defendant,  made  by 
her  during  the  continuance  of  the  cruel  treatment,  were  not  admissible 
on  her  own  behalf,  when  offered  by  her  to  account  for  scars  and  other 
marks  of  violence  and  severe  usage  appearing  upon  the  person  of  the 
deceased. 


m 


M' 


:>?;■■ 


382 


AMERICAN  CRIMINAL  REPORTS. 


I 


I 


Before  Judge  Lawson,  Baldwin  Superior  Court. 

C.  P.  Crawford,  by  brief,  for  plaintiff  in  error. 
C  Anderson,  attorney-general;  liobert   Whitfield,  solicitor- 
general,  by  J.  11.  Lumpkin,  for  the  state. 

Hall,  Justice.  1.  "  Death  ensuing  in  consequence  of  the  wil- 
ful omission  of  a  duty  will  be  murder;  death  ensuing  in  conse- 
quence of  the  negligent  omission  of  a  duty  will  be  manslaugh- 
ter.'' Inliexv.  lluyhes,  Lord  Campbell,  delivering  the  opinion 
of  the  court  of  criminal  appeal,  said :  "  It  has  never  been  doubted 
that,  if  death  is  the  direct  consequence  of  the  malicious  omission 
to  perform  a  duty,  as  of  a  mother  to  nourish  her  infant  child, 
this  is  a  case  of  murder.  If  the  omission  was  not  malicious,  and 
arose  from  negligence  only,  it  is  a  case  of  manslaughter." 
Roscoe's  Cr.  Ev.,  723,  and  cases  cited.  Where  a  sick  or  weak 
person  is  exposed  to  cold,  with  an  intent  to  destroy  him,  this 
may  amount  "to  wilful  murder,  under  the  rule  that  he  who 
wilfully  and  deliberately  does  any  act  which  apparently  en- 
dangers another's  life,  and  thereby  occasions  his  <leath,  shall, 
unless  he  clearly  prove  to  the  contrary,  be  adjudged  to  kill 
him  of  malice  prepcnHcP  Id.,  and  citations.  Cases  have  arisen 
under  this  principle,  where  apprentices  and  prisoners  have  died 
in  consequence  of  the  want  of  sullicient  food  and  necessaries, 
and  where  the  question  has  been  whether  the  law  would  imply 
such  malice  in  the  master  or  jailer  as  is  necessary  to  make  the 
offense  murder.  A  husband  and  wife  were  both  indicted  for 
the  murder  of  a  parish  apprentice  bound  to  the  former.  Both 
the  prisoners  had  used  the  deceased  in  a  most  cruel  and  bar- 
barous manner,  and  had  not  provided  him  with  sufficient  food 
and  nourishment ;  but  the  surgeon  who  oi)cnod  the  body  de- 
posed that,  in  his  opinion,  the  boy  died  from  debility  and  want 
of  proper  food  and  nourishment,  and  not  from  tiio  wounds  he 
had  received.  Lawrence,  J.,  upon  this  evidence,  was  of 
opinion  that  the  case  was  defective  as  to  the  ^^•ife,  as  it  was 
not  her  duty  to  provide  the  apprentice  with  food,  she  being 
the  servant  of  the  husband,  and  so  directed  the  jury,  who  ac- 
quitted her,  but  the  husband  was  found  guilty  and  executed. 
Id.,  724,  and  citations. 

"  Huggins,  the  warden  of  the  fleet,  appointed  Gibbons  his 
deputy,  and  Gibbons  had  a  servant,  Barnes,  wluwe  duty  it  was 


LEWI8  r.  THE  STATE. 


383 


to  take  care  of  the  prisoners,  and  ^.articularly  of  one  Arne. 
Barnes  put  him  into  a  newly-built  room,  over  a  common  sewer, 
the  walls  of  which  were  damp  and  umvholesome,  and  kept  him 
there  forty-four  days  without  fire,  chamber-pot,  or  other  con- 
veniencj.  Barnes  knew  the  state  of  the  room,  and  for  fifteen 
days,  at  least,  before  the  death  of  Arne,  Iluggins  knew  its 
condition,  having  been  once  present,  seen  Arne  and  turned 
away.  By  reason  of  the  duress  of  imprisonment,  Arne  sick- 
ened and  died.  During  the  time  Gibbons  was  deputy.  Hug- 
gins  sometimes  acted  as  wanlen.  These  facts  appearing  on  a 
special  verdict,  the  court  were  clearl}'  of  opinion  tliat  Barnes 
was  guilty  of  murder.  They  were  deliberate  acts  of  cruelty 
and  enormous  violations  of  dut}'  reposed  by  the  law  in  the 
ministers  of  justice,  but  they  thought  Iluggins  not  guilty, 
because  he  had  only  seen  tlie  deceased  once  during  liis  confine- 
ment, and  that,  from  this  alone,  it  could  not  be  inferred  that 
he  knew  that  his  situation  was  occasioned  by  improper  treat- 
ment or  that  he  consented  to  its  continuance.  He  knew  noth- 
ing of  the  circumstances  under  which  deceased  was  placed  in 
the  room  against  his  consent,  or  tlie  length  of  his  confinement, 
or  how  long  he  had  been  without  the  decent  necessaries  of  life. 
It  was  also  material  that  no  application  had  been  made  to  him, 
which  perhaps  might  have  altered  the  case."     Id..  725. 

Where  the  death  ensues  from  incautious  neglect,  however 
culpable,  rather  than  from  any  actual  malice  or  jirtful  disposi- 
tion to  injure,  or  obstinate  perseverance  in  doing  an  act  neces- 
sarily attended  with  danger,  regardless  of  its  consequences, 
"the  severity  of  the  law,"  says  Mr.  East,  "may  admit  of  some 
relaxation,  but  the  case  must  be  strictly  freed  from  the  latter 
incidents."  1  East's  P.  C.  22P>:  lloscoe'sCr.  Ev.,  72f!.  These 
citations  have  been  made  almost  at  random  from  a  vast  number 
of  similar  cases  scattered  through  the  elementary  treatises  on 
criminal  law  and  the  reports  of  the  decisions  upon  the  subject. 
The  distinction  so  clearly  pointed  out  by  them  is  made  by  our 
own  code,  section  4327,  which  provides  that  where  an  involun- 
tary killing  shall  happen  in  the  commission  of  an  unlawful  act, 
which  in  its  consequences  naturally  tends  to  destroy  the  life  of 
a  human  being,  the  offense  shall  be  deemed  and  adjudged  to  be 
murder. 

In  the  case  at  bar,  this  law  was  admirably  illustrated  in  the 


•I 


I! 


384 


AMERICAN  CRIMINAL  REPORTS. 


able,  clear  and  carefully  prepared  charge  which  Judge  r^awson 
gave  the  jury.  Every  phase  of  the  case  was  presented ;  nothing 
was  omitted  that  should  have  been  presented,  and  nothing  was 
presented  that  ought  to  huve  been  left  out;  ut  least  nothing  of 
which  the  prisoner  could  complain. 

The  only  exception  which  the  ingenuity  and  learning  of  able 
and  zealous  counsel  could  find  to  it  was,  that  there  was  error  in 
not  "  qualifying  it  as  to  the  ammus;  that,  if  the  conduct  of  de 
fendant  did  contribute  to  the  death  of  the  child,  it  was  criminal, 
and  she  would  be  guilty  of  one  or  the  other  of  the  crimes  men- 
tioned,—  murder,  voluntary  or  involuntary  manslaughter,"  and 
"  if  his  death  resulted,  either  proximately  or  remotely,  from 
her  conduct  in  the  case,  then  she  is  guilty  of  some  crime.' 
When  taken  in  connection  with  tl:e  context,  it  will  be  readilv 
seen  that  this  exception  is  not  well  founded.  The  charge  is 
full  and  explicit  as  tu  the  animus  required  to  constitute  crinir 
in  the  accused. 

2.  There  was  no  error  in  rejecting  the  sayings  of  the  defend- 
ant made  during  the  continuance  of  the  cruel  treatment  of  the 
deceased,  when  offered  by  her  to  account  for  the  scars  and  other 
marks  of  violence  and  hard  usages  which  appeared  uj)on  his 
person.  She  could  not  be  permitted  thus  to  fal)ricate  testimony 
in  her  own  favor.    Mitchell  v.  The  State,  71  (ia.,  128. 

3.  This  verdict  was  not  only  sustained,  but,  in  our  opinion, 
required  by  the  evidence.  We  cannot  enter  into  its  hoart-sick 
ening  and  revolting  details,  nor  do  we  trust  ourselves  to  chai' 
acterize  it  by  any  general  description,  lest  W(>  might  appear  to 
be  indulging  in  invective  and  denunciation,  rather  than  temper- 
ate and  measured  reflections,  indispensable  to  judicial  fairness 
or  calm  deliberation.  The  jury,  in  recommen<ling  that  she  ho 
imprisoned  in  the  penitentiary  for  life,  "  seasoned  justice  witii 
mercy,"  which,  if  not  perverted  and  misapplied,  was  at  least 
"  strained  to  its  utmost  tension."  If  they  erred  at  all,  they 
erred  on  the  side  of  safety ;  perhaps  in  deference  to  her  sex,  and 
because  they  thought  it  was  better  that  ninety-nine  guilty  per- 
sons should  escape  than  that  one  innocent  person  should  suffer. 
They  were  more  lenient  to  her  than  she  seems  to  have  been  to 
this  dependent  and  helpless  child. 

Ju(hj)i)ent  affirmed. 


PRICE  V,  THE  STATE. 


385 


Price  v.  Thk  State. 

(18  Texns  Ct.  App.,  474.) 

Man'SLACCJIITER :   Homicide  jimliflable  ti'hen  committed  by  huahand  upon 
permn  taken  in  adultery  tmth  hia  wife. 

1.  JfsTiFiABLE  HOMICIDE  —  Statute  construed  —  Evidente  —  Instruc- 

tion.—Article  507  of  the  Penal  Co<le  rea(l^  aa  follows:  "Homicide 
iH  justifiable  when  committed  by  the  husbani'  upon  the  person  of  any 
one  taken  in  the  act  of  adultery  with  the  wife,  provided  the  killing 
take  place  before  the  parties  to  the  act  of  adultery  have  separated." 
Held,  that  a  proper  (.'onstruction  of  the  term  •'  taken  in  the  act  of 
adultery,"  as  used  in  the  statute,  does  not  mean  that,  in  order  to  avail 
himself  of  the  protection  of  the  statute,  the  husband  should  be  an 
actual  eye-witness  to  the  physical  act  of  coition  between  liis  wife  and 
her  paramour. 

2.  The  reasonableness  of  appearances  which  will  justify  an  act 

OTHERWISE  CRIMINAL.—"  If  a  jtefHon  laboring  under  a  mistake  as  to  the 
particular  fm^t  shall  do  an  act  which  would  otherwise  l)e  criminal,  he 
is  guilty  of  no  offense,  provided  it  be  such  mistake  as  does  not  arise 
from  want  of  proper  core  on  his  part."  In  other  words,  a  pei-son  may 
always  act  u|)on  reasonable  appearances,  and  his  guilt  depends  upon 
the  reasonableness  of  the  appearances,  judged  of  from  his  own  stand- 
point. 

3.  Charge  op  the  court. —  The  gist  of  the  issue  under  the  evidence  in 

this  case  was  whether  or  not  the  facts  tended  to  show  that  the  parties 
were  "taken  in  the  act  of  adultery."  Such  being  the  case,  it  was 
properly  a  part  of  the  law  of  the  case  that  the  jury  should  be  correctly 
instructed  as  to  the  meaning  of  the  expression  "  taken  in  the  act  of 
adultery." 

4.  Construction  — Instruction.— The  phrase,  "  before  the  parties  to  the 

act  of  adultery  have  st^parated,"  as  used  in  the  statute,  contemplates 
only  that  the  parties  are  still  together  in  company  with  each  other, 
after  the  act,  when  the  homicide  is  committed. 

White,  Pkesidino  JundE.  Appellant  was  convicted  of  man- 
slaughter committed  upon  one  William  Chandler;  his  punish- 
ment being  assessed  at  two  years'  confinement  in  the  peniten- 
tiary. 

Before  the  homicide  appellant  had  evidently  become  dissatis- 
fied with  the  familiarity,  which  had  existed  for  some  time,  as 
shown  in  the  conduct  of  his  wife  toward  deceased,  and  the 
deceased  toward  his  wife.  He  may  even  have  entertained  sus- 
picions that  all  was  not  as  it  should  be  between  them,  or,  to  say 
the  least  of  it,  he  felt  that  their  conduct  was  highly  improper. 

On  the  night  of  the  homicide  he  had  evinced  this  state  of 
Vol.  V  — 25 


'Mi 


386 


AMERICAN  CRIMINAL  REPORTS. 


feeling,  of  dissatisfaction  and  suspicion,  in  more  than  one  par- 
ticular, when  deceased  and  his  wife  had  been  seen  whispering 
and  "carrying  on  together,"  before  he  retired  to  his  bed,  leav- 
ing his  wife,  the  deceased  and  his  mother  still  sitting  by  the 
fire.  But  he  retired  and  went  to  sleep.  Not  long  after,  Cluiiid- 
ler,  the  dec* ;ased,  left;  and  not  long  after  he  had,  ostensibly, 
gone  to  his  home,  defendant's  wife,  complaining  of  feeling  sick, 
went  out.  She  was  gone  so  long  that  defendant's  mother  be- 
came uneasy,  and  woke  defendant  up,  and  told  him  he  had 
better  ijo  out  and  see  what  was  the  matter.  Defendant  finally 
got  up,  and,  hearing  persons  talking  in  his  corn-pen,  went  back 
into  the  house,  got  his  gun,  went  to  the  corn-jien,  found  the 
door  open,  Avent  in  and  asked,  "  who  was  there?"  After  this 
question  had  been  repeated  three  times  by  him,  his  wife,  who 
was  lying  down  with  some  one  in  the  crib,  got  up  and  an- 
swered :  "  It's  me.  Price,"  and  said  she  had  gone  there  to  get 
some  corn.  Defendant  told  her  to  come  out,  and  asked  '*  who 
was  with  her?"  She  replied:  "No  one."  Defendant  insisted 
there  was  some  one.  She  said,  "  no,"  and  went  out  at  the 
door.  Defendant  again  asked  who  was  there,  and  deceased 
got  up  and  caught  the  gun.  Defendant  backed  out  of  the 
door,  the  parties  struggling  over  the  gun.  After  getting  out 
of  the  door,  defendant  said :  "  Let  go  the  gun,  and  let  me  go 
about  my  business"  —  the  wife  begging  her  husband  not  to 
shoot  him.  Chandler  then  turned  loose  his  hold  of  the  gun, 
and  defendant  shot  him.  After  the  shooting,  when  a  light 
was  struck,  the  coat  of  deceased  was  found  spread  out  in  the 
crib,  at  tiie  place  where  he  and  defendant's  wife  had  been  lying 
down. 

In  his  voluntary  statement,  which  was  read  by  the  prosecu- 
tion as  evidence  at  the  trial,  defendan<^^  .says:  "I  do  not  know 
what  they  (Chandler  and  my  wife)  were  doing.  I  did  not  take 
time  to  investigate  that.  I  knew  they  were  there  for  no  good. 
That  was  the  only  time  I  ever  saw  them  lying  down  together 
anywhci'c.  1  can't  say  that  I  thought  they  were  having  con- 
nection with  each  other  at  the  time  I  called  to  them  at  the  door 
of  the  crib;  but  by  finding  them  together,  I  supposed  that 
their  object  was  to  have  connection  with  each  other,  and  I 
shot  him.  Chandler,  because  I  felt  that  that  was  the  object  of 
their  being  there  together  at  that  time." 


one  ])ar- 
ispering 
Bc],  Icav- 
^  by  the 
,  Clumd- 
tensibly, 
ing  sick, 
tlier  he- 
he  hail 
it  finally 
ont  back 
(uncl  the 
ifter  this 
,'ife,  who 
and  au- 
re  to  get 
ed  '"  who 
t  insisted 
it  at  the 
deceased 
at  of  the 
tting  out 
}t  mo  go 
id  not  to 
the  gun, 
1  a  light 
)ut  in  the 
leen  lying 

prosccu- 
not  know 
I  not  take 

no  good. 

together 
ving  con- 
t  the  door 
3sed  that 
lei*,  and  I 

object  of 


PRICE  t'.  THE  STATE. 


387 


This  concise  statement  of  the  substance  of  the  facts  will 
sufficiently  illustrate  the  main  question  presented  in  the  record, 
and  so  ably  argued  by  appellant's  counsel. 

The  defense  claimed  was,  that,  under  the  facts  stated  and  our 
law,  the  homicide  was  justifiable.  Our  statute  so  reads :  "  Homi- 
cide is  justifiable  when  committed  by  the  husband  upon  the 
person  of  any  one  taken  in  the  act  of  adultery  with  the  wife, 
provided  the  killing  take  place  before  the  parties  to  the  act  of 
adultery  have  separated."  Penal  Code,  art.  567.  We  are  not 
aware  that  a  similar  statute,  making  such  a  homicide  justifi- 
able, can  be  found  in  the  codes  of  any  other  state ;  though  the 
principle  and  precedent  from  which  ours  is  derived  is  of  most 
ancient  origin.  But  in  most,  if  not  all,  the  states,  as  at  com- 
mon law,  a  killing  under  such  circumstances  would  reduce  the 
homicide  from  murder  to  manslaughter.  Blackstone  says :  "  So, 
if  a  man  takes  another  in  the  act  of  adultery  with  his  wife,  and 
kills  him  directly  on  the  spot,  though  this  was  allowed  by  the 
laws  of  Solon,  as  likewise  by  the  Roman  civil  law  (if  the  adul- 
terer was  found  in  the  husband's  own  house),  and  also  among 
the  ancient  Goths,  yet  in  England  it  is  not  absolutely  ranked 
in  the  class  of  justifiable  homicide,  as  in  case  of  a  forcible  rape, 
but  it  is  manslaughter.  It  is,  however,  the  lowest  degree  of  it, 
and,  therefore,  in  such  a  case,  the  court  directed  the  burning  in 
the  hand  to  be  gently  inflicted,  because  there  could  not  be  a 
greater  provocation."    4  iJlack.  Com.  (Chitty),  side  p.  191. 

Mr.  IMshop  states  the  rule  as  it  now  obtains,  thus :  "  If  a 
husband  finds  his  wife  committing  adultery,  and,  provoked  by 
the  wrorg,  instantly  takes  her  life,  or  the  adulterer's,  .  .  . 
the  homicide  is  only  manslaughter.  But  if,  on  merely  hearing 
of  the  outrage,  he  pursues  and  kills  the  offender,  he  commits 
murder.  The  distinction  rests  on  the  greater  tendency  of  see- 
ing the  passing  fact,  than  of  hearing  of  it  when  accomplished, 
to  stir  the  passions;  and  if  a  husband  is  not  actually  witness- 
ing the  wife's  adultery,  but  knows  it  is  transpiring,  and  in  an 
overjiowering  passion,  no  time  for  cooling  having  elapsed,  he 
kills  the  wrong-doer,  the  offense  is  reduced  to  manslaughter." 
2  I^ish.  Crim.  Law  (7th  ed.),  §  708. 

( )ur  statute  uses  the  expression  "  taken  in  the  act  of  adultery 
with  the  wife."  The  question  is  as  to  the  proper  meaning  or 
construction  of  these  terms.    Do  the  words,  when  properly 


mi. 


388 


AMERICAN  CRIMINAL  REPORTS. 


1      .L 


construed,  moan  that  the  husband  must  discover,  find,  or  see 
the  wife  and  adulterer  in  the  very  act  of  ilhcit  intercourse  or 
copulation  in  order  to  constitute  the  offense  denominated  "  taken 
in  the  act  of  adultery?" 

Such  positive  proofs  of  the  commission  of  the  crime  of  adul- 
tery are  not  required,  and  are  rarely  attainable.  As  a  crime, 
adultery  itself  may  be  established  and  proven  by  circumstantial 
testimony.  liie/iardson  ^K  The  State,  34  Tex.,  142,  Should  the 
law  hold  the  husband  to  a  greater  or  higher  degree  of  proof 
than  itself  requires  to  establish  a  given  fact?  It  is  a  late  hour 
of  the  night, —  the  parties  are  found  in  a  corn-crib  some  dis- 
tance from  the  house,  lying  down  in  the  dark.  They  refuse, 
at  first,  to  answer  when  called ;  then  when  the  wife  answers, 
she  denies  that  any  one  is  with  her, —  when  deceased  gets  up 
he  clutches  the  gun, —  defendant  finds  that  the  one  whose  pre- 
vious conduct  and  "carrying  on"  with  his  wife  has  excited  iiis 
suspicions  is  the  one  he  has  thus  found  in  company  with  his 
wife.  What  would  any  reasonable,  sensible  man  have  con- 
cluded from  these  circumstances?  In  other  words,  how  did 
the  matter  reasonably  appear  to  the  defendant?  To  him  are 
not  these  facts  "confirmations  strong  as  proofs  of  holy  writ?" 
Could  it  have  been  otherwise  than  that  he  had  caught  the  pur- 
ties  in  the  act  of  adultery,  either  just  as  they  were  about  to 
commit,  or  just  after  they  had  in  fact  committed  it?  His  voice 
when  he  called,  perhaps,  had  arrested  them  in  the  very  act  of 
carnal  coition,  and  if  that  Avere  so,  then  were  not  the  j)arties 
caught  or  taken  by  him  in  adultery?  Does  not  the  law  always 
estimate  a  man's  right  to  act  upon  reasonable  a])pearancos? 
Taking  into  consideration  the  res  gestvB, —  taking  the  acts  of  tlie 
parties  and  their  words  coupled  with  their  acts, —  and  were  not 
the  appearances  of  a  character  such  as  would  have  created  the 
reasonable  apprehension  and  conviction,  in  a  person  of  ordinary 
mind,  that  the  parties  thus  taken  were  taken  in  the  act  of 
adultery  ? 

Wo  are  of  opinion  that  the  correct  doctrine  is  that  enun- 
ciated in  llie  State  v.  Pratt,  1  Houston's  Delaware  Eepoits, 
249.  In  passing  upon  the  construction  and  application  of  a 
statute  substantially  similar  to  ours,  except  that  in  Delawai-e 
the  homicide  under  such  circumstances  Avould  only  have  been 
reduced  from  murder  to  manslaughter,  instead  of  being  justili- 


Ift    4 


PRICE  V.  THE  STATE. 


389 


(1,  or  SCO 
3ourse  or 
d"  taken 

3  of  adul- 

I  a  crime, 
mstantial 
lioukl  the 

of  proof 
late  hour 
some  (lis- 
oy  refuse, 
!  answers, 
id  gets  up 
/hose  ])re- 
xcited  liis 
Y  with  his 
have  con- 
,  liow  did 
'o  him  are 
dy  writ?" 
it  tlic  par- 

about  to 

His  voice 
ory  act  of 

he  })arties 

II  w  always 
)oarances? 
acts  of  the 
1  were  not 
rcated  the 
f  ordinary 
;he  act  of 

ihat  enun- 
3  Eeports, 
ation  of  a 
Delaware 
have  been 
sing  justili- 


able,  as  with  us,  it  was  held:  "If  a  husband  find  another  in 
the  act  of  adultery  with  his  wife,  and  in  the  first  transport  of 
passion  excited  by  it  then  and  there  kills  him,  it  will  not  be 
murder,  but  manslaughter  only.  It  is  not  necessary,  however, 
that  he  should  witness  an  act  of  adultery  committed  b}''  them. 
If  he  saw  the  deceased  in  bed  with  his  wife,  or  leaving  it,  or 
found  them  together  in  such  a  position  as  to  indicate  with  rea- 
sonable certainty  to  a  rational  mind  that  they  had  just  then 
committed  the  adulterous  act,  or  were  then  about  to  commit 
it, the  effect  will  be  the  same;  and  if,  under  such  circumstances, 
the  mortal  blow  was  then  and  there  given,  the  killing  will  be 
manslaughter  merely.  But  no  other  knowledge  on  thv.  part  of 
the  husband,  however  positive,  otherwise  acquired,  of  their 
adulterous  intercourse  can  suffice  to  mitigate  and  reduce  the 
crime  from  murder  to  manslaughter."  See  same  case  in  1  Crim. 
Law  J[ag.,  pp.  809,  810. 

As  to  a  proper  construction  of  the  expression,  "  taken  in  the 
act,"  we  cannot  believe  that  the  law  requires  or  restricts  the 
ri^^iit  of  the  husband  to  the  fact  that  he  must  be  an  eye-witness 
to  physical  coition  of  his  wife  with  the  other  party.  As  we 
have  seen,  adultery  can  be  proven  by  circumstances,  and  the 
circumstances  in  this  case  were  not  hearsay,  so  far  as  this  de- 
fendant was  concerned ;  they  transpired  in  his  own  presence, 
sight  and  hearing.  A  mistake  may  possibly  exist  as  to  the 
fact;  ''but  if  a  person  laboring  under  a  mistake  as  to  a  })artic- 
ulur  fact  shall  do  an  act  which  would  otherwise  be  criminal, 
he  is  guilty  of  no  offense  "  (Penal  Code,  art.  45),  ])rovided  it  be 
such  mistake  as  does  not  arise  from  want  of  proper  care  on  his 
part.  Penal  Code,  art.  40.  A  party  may  always  act  upon 
reasonable  appearances,  and  his  guilt  depends  upon  the  reason- 
ableuess  of  the  appearances,  judged  of  from  his  own  stand- 
point. 

^Ir.  Bishop's  rule,  as  above  quoted,  also  commends  itself  to 
us  as  both  just  and  projicr.  "  If  a  imsband  is  not  actually  wit- 
nessing his  wife's  adultery,  but  knows  it  is  transpiring,  and  in 
an  overpowering  passion,  no  time  for  cooling  having  elapsed, 
he  kills  the  wrong-doer,  the  offense  is  reduced  to  manslaughter." 
Citing  The  Sfxite  v.  Jlolnics,  54  Miss.,  J5o;  Blijgs  v.  The  State, 
20  Ga.,  723;  Cheek  v.  The  State,  35  Ind.,  492.  And  to  the 
same  effect  is  Jlahef  v.  The  State,  10  Mich.,  212.     If  the  of- 


W»V<*i 


A. 

•  -M 

!•., 

:M' 

'^■m~ 

:^:0, 

:'0 

m 

■M 

390 


AMERICAN  CRIMINAL  REPORTS. 


fense  would  be  manslaughter  at  common  law,  and  in  most  of 
the  other  states,  it  would  in  like  circumstances  be  justifiable 
homicide  under  the  special  provisions  of  our  statute.  Penal 
Code,  art.  570. 

In  his  charge  to  the  jury,  the  learned  trial  judge  instructed 
them  fully  and  ably  upon  the  law  of  murder  of  the  second  de- 
gree (murder  in  the  first  degree  being  aiiandoned)  and  man- 
slaughter. His  charge  upon  justifiable  homicide,  predicated 
upon  the  statute,  was  in  these  words,  viz.:  "  If  the  jury  find 
that  the  defendant  shot  and  killed  the  said  Chandler  at  the 
time  and  ])lace  as  alleged,  and  it  also  appears  from  the  testi- 
mony that  defendant  shot  and  killod  said  Chandler  when  taken 
in  the  act  of  adultery  or  carnal  intercourse  with  the  wife  of 
the  defendant,  and  before  they  (Chandler  and  tiie  wife)  had 
separated,  then  they  will  find  him  not  guilty." 

The  very  gist  of  the  issue  made  by  the  facts  in  the  case  was 
as  to  whether  the  facts  tended  to  show  that  the  })artics  were 
"  taken  in  the  act  of  adultery,"  and  in  all  such  cases,  we  imag- 
ine, the  principal  contest  will  be  as  to  that  fact.  Such  being 
true,  it  is  a  part  of  the  law  of  such  cases  that  tlie  jury  should 
be  properly  instructed  as  to  what  is  meant  by  the  expression, 
"  taken  in  the  act."  "Without  some  explanation  of  the  phrase, 
a  jury  would  scarcely  be  able  to  comprehend  and  understand 
its  import,  so  as  correctly  to  apply  it  to  the  facts. 

They  would,  perhaps,  be  most  likely  to  interpret  it  as  mean- 
ing that  the  parties  must  be  taken  in  the  very  act  and  process 
of  carnal  intercourse  and  copulation. 

Again,  it  was  important  that  the  jury  should  have  been  in- 
structed as  to  the  meaning  of  the  other  expression  used  in  the 
statute,  "  before  the  parties  to  the  act  of  adultery  have  sep- 
arated." Giving  the  language  a  too  literal  construction,  tliey 
might  infer  that  it  meant  that  the  parties  must  be  ))hysi('ally 
united  with  the  rein,  in  ?■/>,  in  the  act  of  copulation,  and  that  it 
would  be  a  separation  though  they  might  still  be  in  the  sauio 
bed  or  same  room.  Evidently  the  statute  means  no  such  thing, 
and  contemplates  only  that  the  parties  are  still  together,  in 
company  with  each  other,  after  the  act,  when  the  homicide  is 
committed. 

Again,  it  is  most  clear  that  the  word  "  adultery,"  as  used  in 
the  statute,  cannot  be,  or  mean,  the  adultery  which  is  delined 


' 


most  of 
jstitiable 
I.     Penal 

ristructed 
3C0U(l  tle- 
md  man- 
reclicatod 
jury  lind 
[cr  at  the 
the  testi- 
lien  taken 

0  wife  of 
wife)  had 

1  case  was 
rties  were 

we  imag- 
ueli  being 
iry  should 
Lxprossion, 
»o  phrase, 
ndcrstand 

t  as  mean- 
nd  process 

•e  been  in- 
ised  in  the 
have  sep- 
otion,  tlioy 
]diysic;aUy 
and  that  it 
I  the  same 
5iu;h  thing, 
ogether,  in 
lomicide  is 

as  used  in 
I  is  delined 


COMMONWEALTH  v.  PIERCE. 


391 


as  a  specific  offense  by  the  code,  and  which  is  "  the  living  to- 
irether  and  carnal  intercourse  with  each  other,  or  habitual  car- 
nal  intercourse  with  each  other,"  etc.,  of  a  man  and  woman, 
etc.    Penal  Code,  art.  333. 

It  cannot  be  that  statutory  adultery  must  be  shown  by  the 
husband  justifying  under  the  law  we  are  discussing.  Evi- 
dently ecclesiastical  adultery  is  meant, —  adultery  as  it  is  known 
in  common  parlance, — "  violation  of  the  marriage  bed,"  whether 
the  adultery  consisted  of  but  one  or  more  acts,  or  whether  the 
parties  lived  in  habitual  carnal  intercourse  or  not.  It  was  part 
of  the  law^  of  the  case  that  "  adultery,"  as  used  in  this  statute, 
should  have  been  explained  to  the  jury. 

There  were  no  special  exceptions  to  the  charge  of  the  court, 
but  the  defects  of  omission  pointed  out  are,  in  our  opinion, 
fatal  to  the  sufficiency  of  the  charge,  which,  under  the  statute, 
must  set  forth  distinctly  the  law  applicable  to  the  facts.  De- 
fendant's counsel  submitted  several  requested  instructions, 
Avhicli  should  have  called  the  attention  of  the  court  to  the 
omissions  in  its  own  charge,  though  it  might  not  feel  inclined 
to  give  said  instructions  as  presented  and  requested. 

For  the  errors  in  the  charge  of  the  court,  as  above  pointed 
out,  the  judgment  is  reversed  and  the  cause  remanded. 

lieversed  and  remanded. 


Commonwealth  v.  Pieuob. 

(138  Mass.,  165.) 

Manslaughter  :  Whcti  physician  guilty  of  —  Indictment. 

1.  A  PHYSICIAN  WHO   PRESCRIBES   FOR    A    PERSON   WITH    FOOLHARDY  PRE- 

SUMPTION MAY  BE  GUILTY  OF  MANSLAUGHTER.— WJiere  a  persoii  piac- 
ticiuy  publicly  us  a  physician  is  called  upon  to  attend  a  sick  woman, 
and  prescribes,  with  gross  recklessness,  a  course  of  treatment  which 
causes  deatli,  he  may  be  found  guilty  of  manslaugliter,  although  he 
acted  in  the  premises  with  her  consent,  and  with  no  evil  intent. 

2.  Indictment  need  not  allege  that  accused  knew  of  the  deadly 

TENDENCY  OF  THE  SUBSTANCE.—  An  indictment  charging  manslaughter, 
by  causing  the  clothes  of  the  person  killed  to  be  saturated  with  kero- 
sene, need  not  state  thiit  the  accused  knew  of  the  deadly  or  dangerous 
tendency  of  the  kerosene. 


.!i1 


'V 


ri;>" 


r' 


392 


AMERICAN  CRIMINAL  REPORTS. 


3.  The  STANnARD  by  avhicii  a  physician  is  to  be  tried.— In  tlie  trial 
of  ail  indictment  charging  luanslaugliter,  there  was  evidence  to  the 
effect  that  tlie  defendant,  wlio  practiced  .as  a  phj'sloian,  on  being  called 
to  attend  a  sick  woman,  prescribed  and  directed  that  her  clothes  should 
be  kept  saturated  with  kerosene,  and  that  this  peculiar  course  of  treat- 
ment caused  her  death.  The  jury  were  instructed  that  the  defendant 
was  "to  be  tried  by  no  other  or  higher  standard  of  skill  or  learning; 
than  that  which  he  necessarily  assumed  in  treating  her;  that  is,  that 
he  was  able  to  do  so  without  gross  recklessness  or  unfounded  presump- 
tion in  undertaking  it; "  and  it  was  lielil  that  the  instruction  wtis  suf- 
ficiently favorable  to  the  defendant. 

Indictment,  in  five  counts,  for  manslaughter. 

The  first  count  alleged  that  Franklin  Pierce,  at  West  Boylston, 
in  the  county  of  Worcester,  "  on  the  7th  day  of  January,  in 
the  year  1883,  and  on  divers  other  days  and  times  betwooii 
that  day  and  the  9th  day  of  January  in  said  year  1888,  in  an<l 
upon  one  Mary  A.  Bemis,  of  said  West  Boylston,  in  the  count  \ 
aforesaid,  wilfully  and  feloniously  did  make  divers  assaults, 
and  that  the  said  Franklin  Pierce  did  then,  and  at  the  sevoial 
times  aforesaid,  there  wilfully,  feloniously,  ignorantly,  rashly. 
injuriously  and  improperly  put,  pour  and  place,  and  cause  and 
procure  to  be  put,  poured  and  placed,  on  and  upon  the  body. 
arms,  legs  and  feet  of  her,  the  said  Mary  A.  Bemis,  certain 
hirge  quantities,  to  wit,  two  gallons,  of  kerosene  oil,  and  that 
the  said  Franklin  Pierce,  by  the  means  and  in  the  uuinn(>;- 
aforesaid,  did  then,  and  at  the  several  times  aforesaid,  tlioiv 
feloniously  cause  her,  the  said  ISfary  A.  Betuis,  to  be  and  lu^ 
come  mortally  sick,  weak,  shocked,  diseased  and  disordere«l  in 
her  body  aforesaid,  of  which  said  mori,al  sickness,  weakness, 
shock,  disease  and  disorder  of  her  body,  occasioned  and  broui>iit 
on  by  the  means  and  in  the  manner  aforesaid,  from  the  said  Ttli 
day  of  January,  in  the  year  aforesaid,  until  the  14th  day  of 
said  January,  in  the  same  year,  at  West  Boylston  aforesaid,  in 
the  count}'  aforesaid,  she,  the  said  Mary  A.  Bemis,  did  languisli, 
and  languishing  did  live,  on  which  said  14th  day  of  January, 
in  the  year  aforesaid,  at  West  Boylston  aforesaid,  in  the  county 
aforesaid,  the  said  Mary  A.  Bemis,  of  the  said  mortal  sickness. 
weakness,  shock,  disease  and  disorder,  occasioned  and  broui^lit 
on  as  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say  that  the  said  Franklin  Pierce,  her,  the 
said  Mary  A.  Bemis,  in  manner  and  form  aforesaid,  feloniously 
did  kill  and  slay,  against  the  peace  of  the  said  commonwealth." 


:.-.--'lMi 


COMJIDNWEALTII  v.  TIERCE. 


393 


and  be 


The  second  count  was  as  follows:  "  And  the  jiu'ors  aforesaid* 
on  their  oath  aforesaid,  do  further  present  that  the  said  Frank- 
lin Pierce,  at  said  West  Boylston,  in  the  county  aforesaid,  on 
the  7th  day  of  January,  in  the  year  1883,  and  on  divers  other 
days  and  times  between  that  day  and  the  9th  day  of  January, 
in  the  year  aforesaid,  in  and  upon  one  Mary  A.  Beniis,  of  said 
West  Ijoylston,  in  the  county  aforesaid,  wilfully  and  feloniously 
(Ud  make  divers  assaults,  and  that  the  said  Franklin  Pierce  did 
tlien  and  at  the  several  times  aforesaid,  there  wilfully,  felo- 
niously, ignorantly,  rashly,  injuriously  and  improperly  i)ut,  pour 
and  place,  and  cause  and  procure  to  be  put,  poured  and  placed, 
in,  upon  and  through  certain  underclotliing,  to  wit,  certain 
(h-awei's,  undershirt  and  stockings,  certain  hirge  quantities,  to 
wit,  two  gallons,  of  kerosene  oil,  and  did  then  and  at  the  sev- 
eral times  aforesaid,  there  and  thereby  wet  and  saturate,  and 
cause  and  procure  to  be  wet  and  saturated,  said  underclothing-, 
to  wit,  said  drawers,  undershirt  and  stockings,  with  the  said 
large  (piantities  of  kerosene  oil,  and  did  tiien  and  at  the  several 
times  aforesaid,  there  wilfully,  feloniously,  ignoi-aiitly,  rasldy, 
injuriously  and  improperly  put  and  place,  and  cause  and  pro- 
cure to  bo  put  and  j)laced,  on  and  upon  the  body,  arms,  legs 
and  feet  of  her,  the  said  ]\Iary  A.  Pemis,  said  undei'clothin*^, 
to  wit,  said  drawers,  undershirt  and  stockings,  so  wet  and  sat- 
urated with  kerosene  oil  as  aforesaid,  and  that  the  said  Frank- 
lin Pierce  did  tlien  and  at  the  several  times  aforesaid,  there 
wilfully,  feloniousl}',  ignorantly,  rashly,  injuriously  and  improp- 
erly cause  and  jirocure  said  underclothing,  to  wit,  said  drawers, 
inulershirt  and  stockings,  so  wet  and  saturated  with  kerosene 
oil  as  afui'L'said,  to  remain  on  and  upon  the  body,  legs,  arms 
and  feet  of  her,  the  said  Mary  A.  Pemis,  for  divers  long  spaces 
of  time,  and  tliat  tiie  said  Franklin  Pierce,  by  the  means  and 
in  the  nuinner  aforesaid,  did  then  and  at  the  several  times  afore- 
said, thei'o  feloniously  cause  her,  the  said  ^Nfary  A.  Pemis,  to 
be  and  become  mortally  sick,  weak,  shocked,  diseased  and  dis- 
ordered in  her  body  aforesaid,  of  which  said  mortal  sickness, 
wealcness,  shock,  disease  and  disorder  of  her  body,  occasioned 
and  Ijrouglit  on  by  the  moans  and  in  the  manner  aforesaid, 
from  tile  said  Tth  day  of  January,  in  the  year  aforesaid,  until 
the  14th  day  of  said  January,  in  the  same  year,  at  West  Boyls- 
ton aforesai«l,  in  the  county  aforesaid,  she,  the  said  Mary  A. 


394 


AMERICAN  CRIMINAL  REPORTS. 


Bemis,  did  languish,  and  languishing  did  live,  on  which  said 
14th  da}'  of  January,  in  the  year  aforesaid,  at  West  Boylston 
aforesaid  in  the  county  aforesaid,  the  said  Mary  A,  liemis,  of 
the  said  mortal  sickness,  weakness,  shock,  disease  and  disorder, 
occasioned  and  brought  on  as  aforesaid,  died.  And  so  tlio 
jurors  aforesaid,  on  their  oath  aforesaid,  do  say  that  the  said 
Franklin  Pierce  her,  the  said  Mary  A.  Rcmis,  in  manner  and 
form  aforesaid,  feloniously  did  kill  and  slay,  against  the  poace 
of  said  commonwealth." 

The  remaining  counts  differed  but  slightly  from  the  preced- 
ing and  need  not  bo  set  forth. 

In  the  superior  court,  before  the  jury  were  impaneled,  the 
defendant  moved  to  quash  the  indictment  for  the  following 
reasons:  "1.  The  indictment,  in  the  first  count  thereof,  does 
not  aver  that  the  kerosene  oil,  which  is  therein  alleged  to  have 
been  put,  poured  and  placed  on  and  upon  the  body,  arms,  legs 
and  feet  of  the  said  Mary  A.  Bemis,  was  deleterious,  danger- 
ous or  injurious  in  its  nature,  or  that  it  was  likely  to  produce 
the  results  in  said  counts  alleged  to  have  followed;  and  said 
count  does  not  allege  that  the  defendant  knew  or  had  reason 
to  know  that  said  kerosene  oil  was  deleterious,  dangerous  or 
injurious  in  its  nature,  or  that  he  knew  or  had  reason  to  know 
that  it  was  likely  to  produce  the  results  which  are  in  said  count 
alleged  to  have  followed.  2.  The  indictment,  in  the  second, 
third,  fourth  and  fifth  counts  thereof,  does  not  allege  that  the 
kerosene  oil,  Avhich  is  therein  alleged  to  have  l)ecn  put,  poured 
and  placed  on  said  underclothing,  was  deleterious,  dangerous 
oi'  injurious  in  its  nature,  or  was  likely  to  produce  any  danger- 
ous or  deleterious  results,  or  that  the  defendant  knew,  or  had 
reason  to  know,  that  it  was  deleterious,  dangerous  or  injurious 
in  its  nature,  or  likely  to  produce  deleterious,  dangerous  or  in- 
jurious results.  And  said  counts  do  not  contain  any  allega- 
tions that  the  putting  and  placing  said  underclothing,  wet  and 
saturated  with  kerosene  oil,  on  and  upon  the  body,  arms,  legs 
and  feet  of  the  said  Mary  A.  Bemis,  was  of  deleterious,  dan- 
gerous or  injurious  tendency,  or  likely  to  produce  the  results 
therein  alleged  to  have  followed;  nor  do  said  counts  contain 
any  allegation  that  the  defendant  knew,  or  had  reason  to  know, 
the  putting  and  placing  said  underclothing,  wet  and  saturated 
as  aforesaid  with  kerosene  oil,  on  and  upon  the  body,  arms, 


licli  said 
l^oylston 
liemis,  of 
disorder, 
d  so  the 
tlio  siiid 
uicr  and 
ho  poace 

e  prcced- 

cled,  the 
'ollowing 
•eof,  does 
il  to  have 
rms,  legs 
1,  danger- 
produce 
and  said 
ul  reason 
rerous  or 
to  know 
aid  count 
3  second, 
)  tliat  tlie 
t,  poured 
angcrous 
Y  danger- 
w,  or  had 
injurious 
ous  or  in- 
ly allega- 
,  wet  and 
rms,  legs 
ious,  dan- 
10  results 
s  contain 
to  know, 
saturated 
dy,  arms, 


.  Hi 


COMMONWEALTH  v.  PIERCE. 


395 


logs  and  feet  of  the  said  Mary  A.  Bemis,  was  of  deleterious, 
dangerous  or  injurious  tendency,  or  likely  to  produce  the  re- 
sults aforesaid." 

Pitman,  J.,  overruled  the  motion.  The  defendant  was  then 
tried  and  found  guilty ;  and  a  bill  of  exceptions,  in  substance 
as  follows,  was  allowed : 

The  evidence  for  the  government  tended  to  show  that  the 
defendant  publicly  practiced  as  a  physician ;  that  he  was  called 
to  attend  Mary  A.  Bemis  on  December  29, 1882,  and  continued 
to  attend  her  until  January  7, 1883;  that  on  that  da}^  she  being 
very  sick  and  confined  to  her  bed,  he  prescribed  that  kerosene 
oil  should  be  applied  to  her  as  follows:  that  a  flannel  shirt, 
flannel  drawers  and  stockings  should  be  saturated  with  it,  and 
placed  on  her,  and  kept  wot  by  renewing  the  wet  flannels,  etc., 
every  thi'ce  hours;  that  this  was  done,  with  her  consent,  by 
her  husband  and  attendants,  but  not  by  the  defendant  ])erson- 
ally;  that  after  the  defendant  had  gone,  in  about  two  hours, 
owing  to  the  pain  and  distress  of  the  patient,  and  upon  her 
demand,  the  saturated  flannels  were  removed,  and  the  defend- 
ant was  sent  for. 

Tiie  husband  testified  as  follows:  "  On  his  arrival,  I  told  the 
defendant  how  my  wife  had  suffered  and  what  we  had  done ; 
she  said  it  was  as  if  she  was  in  the  fire;  he  replied  that  it  was 
doing  just  what  he  wanted,  like  a  poultice  on  a  boil,  drawing 
it  out;  that  it  was  her  only  salvation.  I  told  him  that  she 
Avould  not  bear  it,  and  asked  him  if  he  would  try  to  persuade 
her;  he  said  he  was  too  tender-heai'ted, —  that  it  was  my  wife 
instead  of  his ;  I  then  talked  with  her  and  told  her  that  the  doc- 
tor said  it  would  not  hurt  so  much  the  next  time;  finally,  she 
said  if  he  would  stay  and  see  the  effect  she  would  try  it,  and  I 
so  reported  to  him,  and  the  flannels  Avere  saturated  and  re- 
placed. The  doctor  remained  until  the  patient  fell  asleep.  She 
did  not  appear  to  suffer  so  much  as  before." 

The  defendant  prescribed  that  the  flannels  should  not  be 
taken  off,  but  kept  wet  with  kerosene  oil  by  pouring  it  upon 
tliem  from  a  can,  and  this  was  done  as  before  by  her  nurse  and 
attendants,  and  not  by  the  doctor  personally.  The  flannels, 
saturated  as  aforesaid,  were  kept  upon  the  patient  until  Jan- 
uaiy  9,  ISSO,  when  they  were  removed  by  the  defendant's 
direction. 


p^ 

'I     1 

'Ml 

390 


AMERICAN  CRIMINAL  REPORTS. 


Tlio  I'vidence  tended  to  show  that  the  effect  of  the  kerosene 
•was  to  blister  and  burn  a  hir^^e  part  of  tlie  surface  of  the  body, 
removing  the  scarf  skin  from  two-thirds  of  the  surface,  as  esti- 
mated by  the  witnesses,  and  taking  off  the  true  skin  over  one- 
third  the  surface  of  the  body,  and  causing  suppurating  sores. 

The  defendant  continued  to  attend  her  until  January  Htli, 
Avhen  he  was  discharged,  and  other  physicians  were  called, 
who  testified  that  she  was  then  past  recovery.  She  died  on 
January  10,  1883,  and  evidence  was  introduced  teniling  to 
show  that  the  cause  of  death  was  the  burning  and  blisterinjr 
produced  by  the  application  of  kerosene  oil  as  aforesaid. 

The  defendant  introduced  evidence  tending  to  show  that  ho 
had,  prior  to  that  time,  made  a})plication  of  kerosene  oil  t(» 
patients  for  various  complaints,  witii  beneficial  results,  and  with 
slight  and  temporary  affection  of  the  skin. 

After  the  close  of  the  defendant's  evidence,  the  governmont 
Avas  allowed,  in  the  exercise  of  the  discretion  of  the  court, 
against  the  defendant's  objection,  to  introduce  a  witness,  who 
testified  that  the  defendant  had,  prior  to  the  time  referred  to 
in  the  indictment,  applied  to  her  kerosene  oil,  and  that  the 
effect  was  to  blister  and  burn  her  flesh  on  her  neck  and  breast 
to  the  bone,  and  that  the  doctor's  attention  was  called  to  this  at 
the  time. 

The  defendant  asked  the  judge  to  rule  as  follows:  1.  This 
indictment  does  not  sufficiently  charge  the  crime  of  manslaugh- 
ter, because  it  neither  alleges  that  the  kerosene  oil  alleged  to 
have  been  placed  on  the  deceased  was  of  dangerous  and  nox- 
ious tendency,  nor  that  the  defendant  Knew,  or  had  reason  to 
know,  that  it  was  of  dangerous  or  noxious  tendency.  2.  There 
is  no  evidence  that  the  defendant  made  any  assault  on  the  de- 
ceased, or  assisted  in  or  counseled  any  assault  upon  her,  and 
therefore  the  allegations  of  the  indictment  are  not  jjroven. 
3.  There  are  no  sufficient  allegations  in  the  indictment  to  raise 
the  question  what  measure  of  knowledge  and  skill,  or  what 
measure  of  care,  one  who  takes  upon  himself  to  prescribe  for  a 
sick  person  is  bound  to  possess  and  bestow  upon  his  patient,  to 
avoid  conviction  of  felon}',  if  death  results  from  his  nuUprac- 
tice.  4.  There  are  no  allegations  in  the  indictment  to  raise 
the  question  what  degree  of  knowledge  and  skill,  or  what 
degree  of  care,  one  pretending  to  be  learned  in  medicine  is 


^ 


1.  This 


COMMONWEALTH  v.  PIERCE. 


^d) 


bound  to  possess  and  bestow  on  his  patient,  to  avoid  convictirn 
of  felony,  if  death  results  from  his  malpractice.  5.  The  d^i- 
fendant  cannot  be  convicted  unless  it  is  proven,  beyond  all 
reasonable  doubt,  that  death  resulted  from  the  treatment  he 
prescribed,  and  that  he  had  so  much  kno\vle<lge  and  probable 
infoi'uiation  of  the  fatal  tendency  of  the  prescription  that  it 
may  be  reasonably  presumed  by  the  jury  to  be  tli'  effect  of 
obstinate,  wilful  rashness,  and  not  of  an  honest  intent  and  e.x- 
pectation  to  cure.  6.  If  the  defendant  made  the  prescription 
with  an  honest  purpose  and  intent  to  cure  the  deceased,  he  is 
not  guilty  of  this  offense,  however  gross  his  ignorance  of  the 
quality  and  tendcncN'of  the  remedy  prescribed,  or  of  the  nature 
of  the  disease,  or  of  both.  7.  There  is  no  evidence  in  this  case 
that  the  defendant,  either  from  his  own  exi)crience  or  from 
the  infornuition  of  othere,  had  any  knowledge  of  the  fatal 
effects  of  kerosene  oil  when  prescribed  in  the  manner  he  pre- 
scribed it.  8.  There  being  no  allegations  in  this  indictment 
that  the  defendant  pretended  to  any  peculiar  knowledge  or 
skill  in  the  treatment  of  the  sick,  he  cannot  be  convicted  unless 
the  ])rescription  he  made  was  one  which  any  person  of  ordi- 
nary knowledge  and  information  would  have  known  to  be  of 
probably  fatal  tendency.  9.  In  considering  whether  the  de- 
fondant  was  guilty  of  such  gross  negligence  as  to  make  him 
criminally  liable,  he  is  not,  under  this  indictment,  to  be  judged 
by  the  standard  of  knowledge  to  be  applied  to  one  claiming  to 
be  a  physician  ])ossessing  peculiar  knowledge  on  the  subject  of 
medicine,  but  only  by  the  standard  applicable  to  unlearned 
men.  10.  He  cannot  be  convicted  unless  his  conduct  in  mak- 
ing the  prescription  was  such  as  would  amount  to  gross  negli- 
gence in  any  person  of  ordinary  sense  and  capacity.  11.  The 
defendant  cannot  be  convicted  under  this  indictment  if  the 
death  resulted  from  any  degree  of  ignorance  on  his  part,  if  he 
was  acting  with  the  purpose  to  cure  or  benefit  the  patient. 

The  judge  declined  to  give  any  of  the  rulings  requested ;  and 
instructed  the  jury  on  these  poiiit=,  in  substance,  as  follows: 

Injurious  acts  resulting  from  gross  carelessness  or  foolhardy 
presumption,  without  intent  to  injure,  may  constitute  an  assault. 
If  persons  who  are  engaged  in  operating  steam-engines  are 
guilty  of  gross  carelessness  or  foolhardy  presumption,  and 
injuries  result,  they  are  criminall}'-  liable.     So  with  apoth- 


39S 


AMERICAN  CRIMINAL  REPORTS. 


I 


■',1 


ecarlcs;  if  a  person  without  knowledge  and  skill  deals  witli 
deadly  drugs,  ho  may  be  guilty  of  gross  carelessness  amount- 
ing to  presumption,  and  be  criminally  liable.  Whenever  men 
are  called  upon  to  act  with  dangerous  agencies,  the  law  holds 
them  to  some  degree  of  criminal  responsibility.  If  they  are 
grossly  careless,  or  reckless  and  presumptuous,  they  are  guilty. 
Tlie  same  general  principle  applies  to  medical  treatment.  The 
government  must  show,  not  merely  the  absence  of  ordinary 
care,  but  gross  carelessness  amounting  to  recklessness.  A  man 
is  not  to  be  convicted  of  manslaughter  merely  because  of  his 
ignorance.  His  ignorance  is  only  important  as  bearing  upon 
the  question  whether  his  conduct  in  the  care  and  treatment  of 
the  patient  was  marked  by  foolhardy  presumption  or  gross  and 
reckless  carelessness.  The  defendant  in  this  case  is  to  be  tried 
by  no  other  or  higher  standard  of  skill  or  learning  than  that 
which  he  necessarily  assumed  in  treating  her;  that  is,  that  he 
was  able  to  do  so,  without  gross  recklessness  or  foolhardy  pre- 
sumption in  undertaking  it.  It  is  not  necessary  to  show  an 
evil  intent;  if,  by  gross  and  reckless  negligence,  he  caused  the 
death,  he  is  guilty  of  culpable  homicide.  The  question  is 
whether  the  kerosene  (if  it  was  the  cause  of  the  death),  eitlier 
in  its  original  application,  renewa'  or  continuance,  was  applied 
as  the  result  of  foolliardy  presumption  or  gross  negligence  on 
the  part  of  the  defendant. 

F.  P.  Gouhlouj,  for  the  defendant,  in  support  of  the  motion 
to  quash  the  indictment,  cites  the  following  cases:  Heard's 
Crim.  Law,  520;  Rex  v.  Long,  4  C.  &  P.,  308;  Jie,e  v.  Wchh,  1 
Mood.  &  Rob.,  40.5;  Rex  v.  Spiller,  5  C.  &  P.,  33.3;  Common- 
wealth V.  T/wtitjhson,  G  Mass.,  134;  lilce  v.  State,  8  Mo.,  iiOl; 
/State  V.  Sculz,  55  Iowa,  628;  Hex  v.  Williamson,  3  C.  &  P., 
635. 

E.  J.  Sherman,  attorney-general,  for  the  commonwealth. 


Holmes,  J.  The  defendant  has  been  found  guilty  of  man- 
slaughter, on  evidence  that  he  publicly  practiced  as  a  physi- 
cian, and,  being  called  to  attend  a  sick  woman,  caused  her, 
with  her  consent,  to  be  kept  in  flannels  saturated  with  kerosene 
for  three  days,  more  or  less,  by  reason  of  which  she  died. 
There  was  evidence  that  he  had  made  similar  applications  with 


COMMONWEALTH  v.  PIERCE. 


399 


als  with 
[imount- 
ver  men 
,w  holds 
thoy  arc 
a  guilty. 
It.    The 
)rdinary 
A  man 
ie  of  his 
ng  upon 
tment  of 
;ross  and 
be  tried 
han  that 
,  that  he 
irdy  pre- 
show  an 
Luscd  the 
estion  is 
li),  either 
s  a])plicd 
renco  on 


c  motion 

Hoard's 

WM,  I 

Comnwn- 

\Io.,  501 ; 

c.  &  r., 

ealth. 

r  of  man- 
a  physi- 

ascd  her, 
kerosene 

she   died. 

iions  with 


' 


favorable  results  in  other  cases,  but  that  in  one  the  effect  had 
been  to  blister  and  burn  the  flesh  us  in  the  present  case. 

The  main  questions  which  have  been  argued  before  us  are 
raised  by  the  iifth  ami  sixth  rulings  requested  on  behalf  of  the 
defendant,  but  refused  by  the  court,  and  by  the  instructions 
given  upon  the  same  matter.  The  iifth  recpiest  was,  shortly, 
that  the  tlefendant  must  have  "  so  much  knowledge  or  probable 
information  of  the  fatal  tendency  of  the  prescription  that  it  (the 
death)  may  be  reasonably  presumed  by  the  jury  to  bo  the  ef- 
fect of  obstinate,  wilful  rashness,  and  not  of  an  honest  intent  and 
expectation  to  cure."  The  seventh  I'eijuest  assumes  the  law  to 
he  as  thus  stated.  The  sixth  request  was  as  follows:  "  If  the 
defendant  mu<le  the  proscription  with  an  honest  purpose  and 
intent  to  cure  the  deceased,  he  is  not  guilty  of  this  offense, 
however  gross  his  ignorance  of  the  quality  and  tendency  of 
the  remedy  j)rescribed,  or  of  the  nature  of  the  disease,  or  of 
both."  The  eleventh  recjuest  was  substantially  similar,  except 
that  it  was  confined  to  this  indictment. 

The  court  instructed  the  jury  that "  it  is  not  necessary  to  show 
an  evil  intent; "  that  "  if,  by  gross  and  reckless  n"gligence,  he 
caused  the  death,  he  is  guilty  of  culpable  honiicide; "  that  "  the 
question  is  whether  the  kerosene  (if  it  wjis  the  cause  of  the 
death),  either  in  its  original  api)lication,  renewal  or  continu- 
ance, was  applied  as  the  result  of  foolhardy  presumption  or 
gross  negligence  on  the  part  of  the  defendant;"  and  that  the 
defendant  was  "  to  be  tried  by  no  other  or  higher  standard  of 
skill  or  learning  than  that*  which  he  necessarily  assumed  in 
treating  her;  that  is,  that  he  was  able  to  do  so  without  gross 
rocklessness  or  foolhardy  presumption  in  undertaking  it."  In 
other  words,  that  the  defendant's  duty  was  not  enhanced  by 
any  express  or  implied  contract,  but  that  he  was  bound  at  his 
peril  to  do  no  gross!/  reckless  act  when,  in  the  absence  of  any 
emergency  or  other  exceptional  circumstances,  he  intermeddled 
with  the  person  of  another. 

The  defendant  relies  on  the  case  of  Cotnmonwealth  v.  Thomp- 
son, 0  Mass.,  134,  from  which  his  fifth  request  is  quoted  in 
terms.  His  argument  is  based  on  another  quotation  from  the 
same  opinion :  "  To  constitute  manslaughter,  the  killing  must 
have  been  a  consequence  of  some  unlawful  act.  Now,  there 
is  no  law  which  prohibits  any  man  from  prescribing  for  a  sick 


400 


AMERICAN  CRIMINAL  REPORTS. 


f'; 


person  with  his  consent,  if  he  honestly  intends  to  cure  him  by 
his  prescription."  This  language  is  ambiguous,  and  we  must 
begin  by  dis])osing  of  a  doubt  to  which  it  might  give  rise.  If 
it  means  that  tlie  killing  must  be  the  consequence  of  an  act 
which  is  unlawful  for  independent  reasons  apart  from  its  likeli- 
hood to  kill,  it  is  wrong.  Such  may  once  have  been  tiie  law, 
but  for  along  time  it  has  been  just  as  fully,  and  latterly,  we 
may  add,  much  7iK)re  willingly,  recognized  that  a  man  niiiy 
commit  murtler  or  manslaughter  by  doing  otherwise  lawful 
acts  recklessly,  as  that  he  may  by  doing  acts  unlawful  for  in- 
dependent reasons,  from  which  death  accidentally  ensues.  \i 
Inst.,  57;  1  Hale,  P.  C,  472-47T;  1  Hawk.  P.  C,  ch.  h,  sees.  3, 4, 
12;  ch.  31,  sees.  -t-C;  Foster,  2G2,  2<J3  (Homicide,  ch.  1,  sec.  4); 
4  Bl.  Com.,  li)2,  197;  1  East,  P.  C,  2(50  et  seq.;  IMVs  Case, 
Kelyng,  40,  and  cases  cited  below. 

But  recklessness  in  a  moral  sense  means  a  certain  state  of 
consciousness  with  reference  to  tlie  consequences  of  one's  acts. 
Ko  matter  whether  defined  as  indifference  to  what  those  con- 
sequences may  be,  or  as  a  failure  to  consider  their  nature  or 
probability  as  fully  as  the  i>arty  might  and  ought  to  have  done, 
it  is  untlerstijod  to  depend  on  the  actual  condition  of  the  indi- 
vidual's mind  with  regard  to  consequences,  as  distinguislied 
from  mere  knowledge  of  i)i'esent  or  past  facts  or  circumstances 
from  which  some  one  or  everybody  else  might  be  led  to  antic- 
ipate or  apprehend  them  if  the  supposed  act  were  done.  We 
have  to  determine  whether  recklessness  in  this  sense  was  nec- 
essary to  make  the  defendant  guilty  of  felonious  homicide,  or 
■whether  his  acts  are  to  be  jmlged  by  the  external  .^amlaid  of 
■what  would  be  morally  reckless,  under  tlie  circumstances 
known  to  him,  in  a  num  of  reasonable  prudence. 

More  specifically,  the  (juestions  raised  by  the  foregoing  re- 
quests and  rulings  arc  whether  an  actual  good  intent  and  the 
expectation  of  good  results  are  an  absolute  justificaticm  of  acts, 
however  foolhardy  they  nuiy  be  if  judged  by  the  external 
standard  suj)posed,  and  whetlier  the  defendant's  ignorance  of 
the  tendencies  of  kerosene,  administered  as  it  was,  will  excuse 
the  administration  of  it. 

So  far  as  civil  liability  is  concerned,  at  least,  it  is  very  clear 
that  what  we  have  called  the  external  standard  would  be  ap- 
plied, and  that,  if  a  man's  conduct  is  such  as  would  be  reck- 


mmnnniim^. 


COMMONWEALTH  v.  PIERCE. 


401 


!  him  by 

ve  must 
rise.    If 
I  an  act 
its  likeli- 
the  law, 
;erly,  we 
tan  miiy 
e  lawful 
ul  for  in- 
isues.    '-i 
sees.  3, 4, 
I,  sec.  -i); 
IPn  Case, 

state  of 
(lie's  acts, 
hose  con- 
nature  or 
lave  done, 

the  indi- 
inguished 
imstancos 

to  antic- 
lone.    AVe 

was  nec- 
nicidc,  or 
mdaiil  of 
imstances 

3<roin<!:  re- 
t  and  the 
)n  of  acts, 

external 
(trance  of 

ill  excuse 

rcry  clear 
ukl  be  ap- 
I  be  reck- 


less  in  a  man  of  ordinary  prudence,  it  is  reckless  in  him. 
Unless  he  can  bring  himself  within  some  broadly  defined  ex- 
ception to  general  rules,  the  law  deliberately  leaves  his  idio- 
syncrasies out  of  account,  and  peremptorily  assumes  that  ho 
has  as  much  capacity  to  judge  and  foresee  coiise(iuencos  as  a 
man  of  ordinary  prudence  would  have  in  the  same  situation. 
In  the  language  of  Tindal,  C.  J.:  "Instead,  therefore,  of  say- 
in""  that  the  liability  for  negligence  should  Ije  co-extensive  with 
the  judgment  of  each  individual,  which  would  be  as  variable 
as  the  length  of  the  foot  of  eacli  individual,  we  ought  rather 
to  adhere  to  the  rule  which  re(iuires  in  all  cases  a  regard  to 
caution  such  as  a  man  of  ordinary  prudence  would  observe." 
Va>iijh(Ui  V.  Menlove,  3  Bing.  N.  C,  408,  -475;  S'.  C,  4  Scott, 
>J44. 

If  this  is  the  rule  adopted  in  regard  to  the  redistribution  of 
losses,  which  sound  policy  allows  to  rest  where  they  fall  in  the 
absence  of  a  clear  reason  to  the  conti-ary,  there  would  seem  to 
I)e  at  least  equal  reason  for  adopting  it  in  the  criminal  law, 
which  has  for  its  immediate  object  and  task  to  establish  a  gen- 
eral staiulard,  or  at  least  general  negative  limits  of  conduct  for 
the  community  in  the  interest  of  the  safety  of  all. 

Tiiere  is  no  denying,  how^ever,  that  Cominomvealth  i\  Thomp- 
■wn,  although  possibly  distinguishable  from  the  pi'esont  case 
upon  the  evidence,  tends  very  strongly  to  limit  criminal  liabil- 
ity more  narrowly  than  the  instructions  given.  JJut  it  is  to  be 
ohserved,  that  the  court  did  not  intend  to  lay  down  any  new 
law.  They  cited  and  meant  to  follow  the  statement  of  Lord 
Hale  (1  P.  C,  429),  to  the  effect  ''that  if  a  physician,  whether 
licensed  or  not,  gives  a  person  a  potion,  without  any  intent  of 
doing  him  any  bodily  hurt,  but  with  intent  to  cure  or  prevent  a 
disease,  and,  contrary  to  the  ex|)ectation  of  the  ])liysician,  it 
kills  him,  he  is  not  guilty  of  murder  or  manslaughter."  0  Mass., 
141.  If  thi  portion  of  the  charge  to  the  jury  is  reported  ac- 
curately, which  seems  uncertain  (0  ^fass.,  i;>4,  n.),  wo  think 
that  the  court  fell  into  the  mistake  of  taking  Lord  Hale  too 
literally.  Lord  Hale  himself  admitted  that  other  persons 
might  make  themselves  liable  by  r(>ckless  conduct.  1  P.  C, 
472.  We  doubt  if  he  meant  to  deny  that  a  physician  might 
<lo  so,  as  well  as  any  one  else.  He  has  not  been  so  understood 
in  later  times.  Hex  v.  Long,  4  C.  &  P.,  423,  430;  WehVa  Case, 
Vol.  V  — 26 


402 


AMERICAN  CRIMINAL  REPORTS. 


','  !■ 

2  Lewin,  100,  211.  His  text  is  simply  an  abridgment  of  4  Tnst., 
251.  Lord  Coke  there  cites  The  Mirror,  ch.  4,  sec.  10,  with 
seeming  approval,  in  favor  of  the  liability.  The  case  cited  by 
Kale  does  not  deny  it.  Fitz.  Abr.,  Corone,  pi.  10.3.  Another 
case  of  the  same  reign  seems  to  recognize  it.  Y.  B.  4->  Edw. 
III.,  33,  pi.  38,  where  Thorp  said  that  he  had  seen  one  ^1.  in- 
dicted for  killing  a  man  whom  he  had  undertaken  to  cure,  by 
want  of  care.  And  a  multitude  of  modern  cases  have  settled 
the  law  accordingly  in  England.  Ii<',e  v.  Wt/Z/tt/ihson,  3  C.  <k 
P.,  035;  Temt/maiurs  €'(((<<',  1  Lewin,  ItiO;  Iu-rf/ifxo)i\^  ('ii.\r, 
1  Lewin,  181 ;  /^<w  v.  Shi}pi^o»,  Willcock,  JVled.  l*rof.,  part  2. 
ccxvii;  L\'x  v.  Loiuj,  4  V.  Sz   P.,  3i»8;  id.,  423;  J^^-x  v.  SpUIcr. 

5  V.  &  P.,  333;  m^r  v.  Senior,  I  Moody,  340;  Wehl's  Cim,  ull 
supra  I  S.  C,  1  Afood.  «fc  Rob.,  4<>5;  QKcen  v.Spllllnfj,  2  Mood. 

6  Kob.,  107;  Reylna  v.  W/iifr/nof/,  3  C.  &  K.,  202;  /icfj/na  v. 
Crick,  1  V.  6c  F.,'519;  licyituc  v.  Crook,  1  V.  &  ¥.,  521;  A'vf/imt 
V.  J/^o'Zvr.s'.*,  4  F.  &  ¥.,  350;  Retjinav.  Chamhcrlin,  10  Cox,  ('. 
C,  480;  IMjina  v.  Macleod,  12  Cox,  C.  C,  534.  See.  also.  Am, 
V.  Sfnte,  11  ilumph.,  159;  State  v.  Ilar'lister,  38  Ark.,  005,  and 
the  Massachusetts  cases  cited  below. 

If  a  physician  is  not  less  liable  for  reckless  conduct  than 
other  people,  it  is  clear,  in  the  light  of  admitted  pi-inciple  and 
the  later  Massachusetts  cases,  that  the  recklessness  of  the  crim- 
inal no  less  than  that  of  the  civil  law  must  be  tested  by  wliat 
we  have  called  an  external  standard.  In  dealing  with  a  man 
who  has  no  special  training,  the  (juestion  whether  his  act  would 
be  reckless  in  a  man  of  ordinary  prudence  is  evidently  e']uiva- 
lenttoan  inrjuiry  into  the  degree  of  danger  which  connnon 
experience  shows  to  attend  the  act  under  the  circumstances 
known  to  the  actor.  The  only  difference  is,  that  the  latter  in- 
quiry is  still  more  obviously  external  to  the  estimate  formed 
by  the  actor  personally  than  the  former.  But  it  is  familiar 
law  that  an  act  causing  death  may  be  murder,  manslaughter 
or  misadventure,  according  to  the  degree  of  danger  attending 
it.  If  the  danger  is  very  great,  as  in  the  case  of  an  assault 
with  a  weapon  found  by  the  jury  to  bo  deadly,  or  an  assault 
with  hands  and  feet  upon  a  woman  known  to  be  exhausted  by 
illness,  it  is  murder.  Cohnaoimtealth  v.  Drew,\  Mass.,  391,39ft: 
Cornmonirmlth  v.  Fox,  7  Gray,  585.  The  doctrine  is  clearly 
stated  in  1  East,  P.  C,  202. 


■'a 


COMMONM^EALTH  v.  PIERCE. 


403 


if  4  Tnst., 

IG,  with 

citoil  by 

Another 
.  i?>  Edw. 
»ne  ^I.  in- 
)  cure,  by 
\'e  settled 
>;;,  3  C.  i^ 

f.,  part  2. 
V.  Sjtilkr, 
s  Caxe,  uhl 
I,  2  ^r<)od. 
Rcgiitd  V. 
L;  linjlna 
10  Cox,  ('. 
.  also.  Ann 
:.,  005,  and 

iduct  than 
nciplc  and 
if  the  crim- 
mI  by  what 
ith  a  man 
■?  act  woidd 
tly  o'luiva- 
1  common 
cuinstanccs 
le  latter  in- 
ato  formed 
is  familiar 
inslauffhter 
i-  attending 
an  assault 
an  assault 
ihaustcd  by 
;s.,  301, 396: 
3  is  clearly 


The  very  meaning  of  the  fiction  of  implied  malice  in  such 
cases  at  common  law  was,  that  a  man  might  have  to  answer 
wiih  his  life  for  consequences  which  he  neither  intended  nor 
foresaw.  To  say  that  he  was  presumed  to  have  intended  them 
is  merely  to  .adopt  another  fiction  and  to  disguise  the  truth. 
The  truth  was,  that  his  failure  or  inability  to  predict  them  was 
immaterial,  if,  under  the  circumstances  known  to  him,  the 
court  or  jury,  as  the  case  might  be,  thought  them  obvious. 

As  implied  malice  signifies  the  highest  degree  of  danger,  and 
makes  the  act  murder,  so  if  the  danger  is  less,  but  still  not  so 
remote  that  it  can  be  disregarded,  the  act  will  be  called  reck- 
less, and  will  be  manslaughter,  as  in  the  case  of  an  owlinary 
assault  with  feet  and  luinds,  or  a  weapon  not  deadly,  upon  a 
well  person.  Cases  of  Drew  and  Fox,  xhi  supra.  Or  firing  a 
pistol  into  the  highway,  when  it  does  not  amount  to  murder. 
Rer  V.  /inrt(yn,  1  Stra.,  481.  Or  slinging  a  cask  over  the  high- 
way in  a  customary  but  insufficient  mode.  Ji't/jmaldon^s  Case, 
I  Ivcwin,  180.  See  IftilVs  Case,  vhi  supra.  Or  careless  driv- 
ing. Rex  V.  Thniniuft,  7  C.  &  P.,  45>9;  Rerfhia  v.  Dalloway,  2 
CJox,  C.  C,  273;  Rcd'nm  v.  Swlndall,  2  V.  &  K.,  230, 

If  the  principle  which  has  thus  been  established,  both  for 
murder  and  manslaughter,  is  adhered  to,  the  defendant's  in- 
tention to  produce  the  opposite  result  from  that  which  came 
to  pass,  leaves  him  in  the  same  position  with  regard  to  the 
present  charge  that  ho  would  have  been  in  if  he  had  had  no 
intention  at  all  in  the  matter.  We  think  that  the  principle 
must  he  adhered  to  where,  as  here,  the  assumption  to  act  as  a 
physician  was  uncalled  for  by  any  sudden  emergency,  and  no 
exceptional  circumstances  are  shown ;  and  that  we  cannot  rec- 
ognize a  privilege  to  do  acts  manifestly  endangering  human 
life,  (m  the  ground  of  good  intentions  alone. 

We  have  implied,  however,  in  what  we  have  said,  and  it  is 
undoubtedly  true,  as  a  general  proposition,  that  a  man's  liabil- 
ity for  his  acts  is  determined  by  their  tendency  under  the 
circumstances  known  to  him,  and  not  by  their  tendency  under 
all  the  circumstances  actually  affecting  the  result,  whether 
known  or  unknown.  And  it  nuiy  be  Jisked  why  the  dangerous 
character  of  kerosene,  or  "  the  fatal  tendency  of  the  prescrip- 
tion," as  it  was  put  in  the  fifth  request,  is  not  one  of  the  cir- 
cumstances the  defendant's  knowledge  or  ignorance  of  which 


404 


AMERICAN  CRIMINAL  REPORTS. 


might  have  a  most  important  bearing  on  his  guilt  or  innocence. 
But  knowledge  of  the  dangerous  clmracter  of  a  thing  is  only 
the  equivalent  of  foresight  of  tlie  way  in  which  it  will  act.  We 
admit  that,  if  the  thing  is  generally  supj)osed  to  be  universally 
liarmless,  and  only  a  specialist  would  foresee  that  in  a  given 
case  it  would  do  damage,  a  person  who  did  not  foresee  it,  and 
who  had  no  warniiig,  would  not  be  held  lial)le  for  the  harm. 
If  men  were  held  answerable  for  everything  they  did  which 
was  dangerous  in  fact,  they  would  be  held  for  all  their  acts 
from  which  harm  in  fact  ensued.  The  use  of  the  thing  must 
be  dangerous  according  to  common  experience,  at  least  to  the 
extent  that  there  is  a  manifest  and  appreciable  chance  of  harm 
from  what  is  done,  in  view  either  of  the  actor's  knowledge  or 
of  his  conscious  ignorance.  And  therefore,  again,  if  the  dan- 
ger is  due  to  the  specific  tendencies  of  the  individual  thing,  and 
is  not  characteristic  of  the  class  to  which  it  belongs,  wliich 
seems  to  have  been  the  view  of  the  common  law  with  regard 
to  bulls,  for  instance,  a  person  to  be  made  liable  must  have 
notice  of  some  past  experience,  or.  as  is  conmionly  said,  "of 
the  quality  of  his  beast."  1  Hale.  1*.  C,  430.  Hut  if  the  dan 
gors  are  chai'acteristic  of  the  class  according  to  common  expe 
rience,  then  he  who  uses  an  article  of  the  class  upon  another 
cannot  escape  on  the  ground  that  he  had  less  than  the  common 
experience.  Cotnmon  experience  is  necessary  to  the  man  of 
ordinary  prudence,  and  a  man  who  assumes  to  act  as  thedefcmd- 
ant  did  must  have  it  at  his  peril.  AVhen  the  jury  are  asked 
whether  a  sticic  of  a  cei'tain  size  was  a  deadly  weapon,  tln^y  ai'e 
not  asked  further  whether  the  defendant  knew  that  it  was  so. 
It  is  enough  that  he  used  and  saw  it,  sucii  as  it  was.  Comiiion- 
irealth  v.  Drein,  uhi  joipra.  See,  also,  ('(niimonirenltht}.  \V<hsft'i\ 
;■)  (^ush.,  '^Dr),  ."iOO.  So  las  to  an  assault  and  battery  by  the  use 
of  excessive  force.  CowtiHmv.ealth  v.  Rantldll,  4  Ciray,  30.  So 
here.  The  defendant  knew  that  he  was  using  kero.sene.  The 
jury  have  found  that  it  was  applied  as  the  result  of  foolhardy 
presumption  or  gro.ss  negligence,  and  that  is  enough.  6W- 
monweaUh  v.  Stvatton,  1 14  Mass.,  303,  305.  Indeed,  if  the 
defendant  had  known  the  fatal  tendency  of  the  prescription, 
he  would  have  been  perilously  near  the  line  of  munler.  Rctjlna 
V.  Packard,  C.  &  M.,  230.  It  will  not  be  necessary  to  invoke 
the  authority  of  those  exceptional  decisions  in  which  it  has 


COMMONWEALTH  v.  PIERCE. 


405 


innocence, 
no-  is  only 
lact.  AVo 
mivorsally 
In  ca  given 
!see  it,  and 

the  harm, 

did  which 
I  their  acts 
ihing  must 
least  to  the 
ice  of  harm 
Dwledge  or 
if  the  dan- 
L  thing,  and 
)ngs,  wliicli 
vith  regard 

must  have 
ly  said,  "of 
,  if  the  dan 
[nmon  oxpe 
)()n  another 

le  common 
the  man  of 

the  (h'fend- 
y  are  aslied 
on,  tliey  aio 
it  it  was  so. 
(!<niiiii(>ii- 

by  the  nsc 
ray,  30.    So 
osene.    The 
)f  foolhardy 
>ugh.     CoW'- 
leed,  if  the 
proscription, 
ler.    R<'<jln(i 
ry  to  invoke 
vhich  it  huH 


been  held,  with  regard  to  knowledge  of  the  circuinstanccs,  as 
distinguished  from  foresight  of  the  consequences  of  an  act, 
that  wlien  certain  of  the  circumstances  were  known,  the  party 
was  bound  at  his  peril  to  in([ulre  as  to  the  others,  although  not 
of  a  nature  to  be  necessarily  inferred  from  what  were  known. 
(hmnioiiioealth  v.  IJitl/rft,  1(»3  ^lass.,  452;  liajiua  v.  Prince.  L. 
R.,  2  C.  C,  15-i;  CoiiuHoniotaJfh  o.  Farreu,  9  Allen,  489. 

The  remaining  questions  may  be  disposed  of  more  shortly. 
When  the  defendant  aj)plied  kerosene  to  the  person  of  the  de- 
ceased in  a  way  which  the  jury  have  found  to  have  been  reck- 
less, or,  in  other  words,  seriously  and  unreasonably  endanger- 
ing hie  according  to  common  experience,  he  did  an  act  which 
his  patient  could  not  justify  by  her  consent,  and  which  there- 
fore was  an  assault  notwithstanding  that  consent.  Commo'ii- 
avalt/i.  V.  CoilU'/y,  119  Mass.,  350.  See  Commoninealth  v.  Mink, 
123  Mass.,  422,  425.  It  is  unnecessary  to  rely  on  the  principle 
of  Coniinonwealth  v.  Stratfon,  ahl  isapi'd,  that  fraud  may  destroy 
the  effect  of  consent,  although  evidently  the  consent  in  this 
case  was  based  on  the  express  or  inqdied  representations  of  the 
defendant  concerning  his  experience. 

As  we  have  intimated  above,  an  allegation  that  the  defend- 
ant knew  of  the  deadly  tendency  of  the  kerosene  was  not  only 
unnecessary,  but  improper.  licyi.na  v.  Packard,  ubi  supra. 
An  allegation  that  the  kerosene  was  of  a  dangerous  tendency 
is  superfluous,  although  similar  allegations  are  often  inserted  in 
indictments,  it  being  enough  to  allege  the  assault,  and  that 
death  did  in  fact  result  from  it.  It  would  be  superfluous  in 
the  case  of  an  assault  with  a  staff,  or  where  the  death  resulted 
from  assault  combined  with  exposure.  See  Coiriinonwealtk  v. 
Mac/oo/i,  101  ]\rass.,  1.  See  further,  the  second  count,  for  caus:- 
ing  death  by  exposure,  in  Stockdalcs  Cane,  2  Lewin,  220;  R<:</- 
Im  V.  Sia'tfh,  11  Cox,  C.  C,  2L0.  The  instructions  to  the  jury 
on  the  standard  of  skill  by  which  the  defendant  was  to  bo  tried, 
stated  above,  were  as  favorable  to  him  as  ho  could  ask. 

Th(^  ol)jection  to  evidence  of  the  defendant's  previous  unfa- 
vorable experience  of  the  use  of  kerosene  is  not  pressed.  The 
admission  of  it  in  rebuttal  was  a  matter  of  discretion.  Com- 
monwealth e.  Blair,  126  Mass.,  40. 

Ed'CiptioHa  ovemded. 


tf 


406 


AMERICAN  CRIMINAL  REPORTS. 


Kent  v.  People. 

(8  Colo.,  563.) 
Manslaughter  :  Malice  —  Evidence  —  Instructions  —  Reasonable  doubt  — 


Res  gestin. 


1. 


•  .."j^riON  IN  LANGUAGE  OF   THE   STATUTE.— Tho  objection  tliat  an 
'>■  '  vv    lon  is  piveii  in  the  lanj^uage  of  the  statute  is  untenable. 
'Z,  iViALici'.. —  Under  the  statute  the  ingredient  of  malice  necessary  to  con- 
stitute tue  crime  of  murder  is  a  question  of  fact  to  be  found  by  tho 

.1111'"' 

3.  Same-  EviDh..»ci?~ Reasonable  doubt.— Tl>e  burden  of  proof  rest* 

upon  the  btat^'  to  |k  uvo  beyond  a  reasonal)le  doubt  the  existence  of  all 
the  material  elements  n<M;essary  to  constitute  the  crime  of  murder  as 
defined  by  the  statute. 

4.  Statutory  construction  —  MALicrj  aforethought.— Under  section 

36  of  the  statute,  to  constitute  tlie  crime  of  murder  in  either  dcgiw, 
there  n  ist  be  a  violation  of  the  puljjic  law  by  the  killing  of  a  liiinian 
being  in  the  peace  of  the  people.  In  the  killing  there  nmst  be  a  union 
or  joint  operation  of  act  and  intention,  and  the  deed  nmst  be  malicions 
to  such  a  degree  as  to  come  within  the  i)hrase  "  malice  aforetiii)uj;ht," 
either  exjjress  or  imi)lied.  Malice  in  such  case  is  an  inference  of  fad, 
not  of  law. 
6.  The  entire  res  gest^  to  be  laid  before  .iury.— To  enable  the  jury 
to  return  a  true  vei'dict,  in  accordance  with  the  oath  to  be  taken  liy 
tbem  separately,  and  as  an  act  of  inijiartial  justice  to  the  accused,  tlio 
entire  res  tjvutw.  should  Ix-  laid  before  the  jury,  to  be  <()nsidereil  as  a 
whole,  without  distinction  as  to  wiiat  party  introduced  the  several 
matters  of  evi<lence:  and  if  upon  sui'h  consideration  a  reasonalilc 
doubt  exists  as  to  the  guilt  of  tiie  prisoner  of  any  crime  included  in 
the  indictment,  he  nmst  be  acipiittcd. 

6,  Same. —  Tliis  rule  includes  all  matters  of  defense  growing  out  of  tlio 

res  yebtte  which  traverse  tiie  allegations  of  tiie  indictment;  also  that  it 
is  only  when  the  defendant  sets  up  indepeiulent  matters  of  defense,  or 
matters  in  avoidance  of  tlie  allegations  of  the  indictment,  that  a  differ- 
ent rule  of  evidence  prevails. 

7.  Same. —  All  facets  in  evidence  properly  (constituting  part  of  the  rcsgesUr 

are  to  be  considered  by  the  jury  in  i)assing  upon  the  question  of  guilt 
or  innocence,  without  discrimination  as  to  the  rules  of  evidence, 
whether  introduced  by  the  prosecutor  or  the  defendant. 

Error  to  District  Court  of  Lake  County. 

Taylor  cfe  Ashton,  for  plaintiff  in  error. 

T.  11.  Thomas,  attorney -general,  for  defendants  in  error. 

Beck,  C.  J.     Plaintiff  in   error,  Charles   M.  Kent,  was  in- 
dicted at  the  August  term,  1>S82,  of  the  district  court  of  Lake 


if{ 


KENT  V.  PEOPLE. 


407 


ihle  doubt  — 


[•tion  tliat  an 
)n!iV)lo. 
cssary  to  (.on- 
fouml  by  the 

)f  proof  rcstw 

siHtoiicc  of  all 

of  inunlor  as 

Undor  section 
citlioi-  (It'Kiw. 
I'  of  a  human 
lUst  bo  iv  union 
at  1)0  iiuilic.ious 
aforotliou.^ht," 
'ereni'o  of  fact, 

cnal)lo  tilt!  jury 
to  be  taken  liy 
he  aitnscil,  tlio 
onsidcrod  us  a 
;od  tlio  si;vi'ral 
u  a  n'u.sonaMe 
me  iiidudeil  in 

ving  out  of  Ur' 
init ;  also  that  it 
s  of  defense,  or 
lit,  that  a  iliffer- 

of  the  res  (jestir 
^uestiou  of  guilt 
es  of  evideuw, 
t. 


s  in  error. 

vent,  was  in- 
court  of  Lake 


county,  for  the  murder  of  one  Thomas  Bennett.  The  crime 
was  committed  on  the  4th  of  July,  of  the  same  year,  in  the 
city  of  Leadville,  and  was  witnessed  by  several  |xn'sons.  Upon 
the  trial,  which  took  place  in  tlie  month  of  November  follow- 
ing, the  prosecutino-  attorney  did  not  confine  the  testimony  to 
the  facts  occvii-ing  at  the  time  of  the  killing,  but  called  wit- 
nesses who  had  knowledge  of  the  facts  and  circumstances 
which  led  to  the  rencounter  resulting  in  the  tragedy  mentioned. 
It  appears  from  the  testimony  of  the  witnesses  that,  for  two 
or  three  years  })rior  to  tlie  month  of  April  preceding,  the  de- 
ceased had  as  a  mistress  a  wonutn  familiarly  known  as  "Carrie 
Hennett."  In  said  month  of  April  the  plaintilf  in  error  mar- 
ried this  woman,  and  afterwards  lived  with  her  in  Leadville. 
The  woman,  however,  appears  to  ha\.'  continued  her  dissolute 
life  after  marriage  as  before.  The  testimou}'  was  to  the  effect 
that  she  visited  low  dance  halls,  frequentetl  only  by  lewd 
women  and  men  who  desired  to  associate  with  tliem,  and  that 
slie  hired  a  room  in  a  house  of  ])rostitution  for  the  purpose  of 
mocting  men  away  from  her  home.  According  to  the  testi- 
1111  )iiy,  all  the  IVn'egoing  facts  were  known  to  her  husband,  in- 
cluding her  ])revious  life,  and  her  immoral  conduct  during  the 
married  state.  It  further  a})pears  that  they  were  accustomed 
to  speak  of  and  to  each  other  in  the  most  disrespectful  style, 
using  towards  each  other  in  public  places  the  vilest  ejiitliets. 

On  the  morning  of  tlie  yd  day  of  July,  the  husband  went 
down  town  with  tlie  expressed  intention  of  going  to  Grunnison, 
hut,  faihng  in  his  purpose,  he  returned  to  his  rooms,  and  there 
found  the  deceased  in  bed  with  his  wife.  lie  left  the  room 
without  offering  any  violence,  and  it  appears  that  he  went 
down  the  street  and  got  drunk.  Either  before  or  after  getting 
into  this  conditicm  he  purchased  a  revolv'er,  and  while  in  iiis 
iut(jxicated  condition  he  told  different  persons  that  he  had 
caught  Jjennett  in  bed  with  his  wife,  and  was  going  to  kill 
liiin,  at  the  same  time  exhibiting  his  revolver.  To  one  or  more 
he  saiil:  "  Toll  Bennett  to  get  a  gun,  for  I  have  one,  and  there 
will  be  trouble  when  we  meet."'  Upon  the  following  day, 
July  4th,  Kent  aiul  Bennett  were  seen  by  several  witnesses  en- 
gaged in  a  list  light  on  a  sidewalk  of  Harrison  avenue.  Each 
one  was  dealing  blows  at  the  other.  They  were  seen  to 
*•  dinch,^^  as  the  witnesses  termed  it,  and  push  each  other  about 


U' 


^08 


AMERICAN  CRIMINAL  REPORTS. 


over  the  sidewalk  for  a  few  minutes,  when  Bennett  sprang 
from  Kent,  attempted  to  run,  dodged  behind  the  witness  Childs, 
and  attempted  to  interpose  the  body  of  Chikls  between  him- 
self and  Kent.  The  latter  took  a  few  steps  forward,  leveled 
his  revolver,  and  tired  one  shot  at  Bennett,  who  then  crossed 
the  street  to  the  op})osite  sidewalk,  sank  down  ui)on  it,  and 
died  within  a  few  minutes.  The  ])roof  shows  that  the  sikot 
fired  by  Kent  took  effect  in  the  vital  portion  of  Bennett's  body, 
causing  death.  The  shooting  and  killing  were  admitted  bv 
the  accused  and  his  counsel. 

The  matters  of  defense  relied  upon  appear  to  have  been 
2>vovocatlon,  heat  ofhlood  and  self-defense.  Two  witnesses  tes- 
tified for  the  defense  that  they  went  to  Bennett,  whore  he  lay 
upon  the  sidewalk,  and  saw  lying  by  his  side  a  pair  of  bi-ass 
knuckles.  Witnesses  visited  accused  in  the  jail,  and  tcstilied 
that  they  found  bruises  upon  his  head  and  one  upon  his  check; 
also  that  one  of  his  ears  was  bleeiling  from  a  small  cut;  but 
other  witnesses  who  saw  him  about  the  same  time  at  the  jail 
did  not  notice  these  wounds.  The  trial  resulted  in  a  verdict 
of  manslaughter,  upon  which  the  accused  was  sentenced  to  a 
term  of  ten  years  in  the  state  penitentiary. 

The  errors  assigned  which  we  are  asked  to  review  relate  to 
certain  instructions  given  to  the  jury  on  the  part  of  the  prose- 
cution. Forty  instructions  were  given  in  all,  eleven  of  them 
having  been  given  on  the  part  of  the  accused.  (We  would 
observe  here  that  the  practice  of  giving  a  great  number  of 
instructions  is  not  to  be  commended,  since  it  tends  to  i)ci'})le,i\ 
rather  than  to  enlujhten.,  the  jury.) 

Among  other  i)oints  urged  against  the  instructions  given  for 
the  prosecution  are  that  they  were  given  to  the  jury  in  the 
language  of  the  statute,  without  explanation  or  qualification; 
that  some  of  them  were  not  applicable  to  the  facts  of  the  case 
on  trial,  and  that  many  of  them  were  misleading  to  the  jury. 
As  a  general  proi)osition,  the  objection  that  instructions  were 
ffiven  in  the  language  of  the  statute  is  not  tenable.  The  stat- 
utes  of  the  state  comprise  the  rules  of  state  government. 
They  are  framed  by  the  chosen  representatives  of  the  people, 
who  are  selected  by  the  i)eoi)le  themselves  for  tb  ■  purpose  of 
framing  their  laws.  The  laws  so  made  are  for  the  info*  i  uition 
and  government  of  the  whole  people,  and  it  is  a  well  known 


KENT  V.  PEOPLE, 


409 


t  sprang 
ss  Childs, 
:een  him- 
d,  leveled 

II  crossed 
m  it,  and 

the  slM)t 
stt's  body, 
nitted  by 

lave  been 
nesses  tes- 
)re  he  lay 
r  of  brass 
[1  testilied 
his  cheek; 
I  cut;  but 
at  the  jail 

I II  verdict 
enced  to  a 

V  relate  to 
the  prosc- 
ti  of  theiu 
We  would 
number  of 
to  /'t'y;/-'/('.''. 

3  given  fur 

ury  in  the 

alilicatioii; 

jf  the  case 

3  the  jury. 

tions  were 

The  stat- 

avernment. 

the  peoj)le, 

purpose  of 

nfo'i  lation 

veil  known 


maxiin  that  "  ignorance  of  the  law  constitutes  no  excuse  for 
its  violation."  It  is  therefore  a  reasonable  presuni[)tion  that  a 
jury  drawn  from  the  ranks  of  the  people  know  and  understand 
the  statutes  of  the  state;  and,  if  this  is  a  correct  presumption, 
tlicre  can  be  no  error  in  giving  to  theni  as  instructions  the 
statutory  definitions  of  criminal  acts,  particulai-ly  if  they  are, 
as  in  this  instance,  accompanied  by  instructions  from  the  court 
applying  the  statutes  to  the  matters  in  issue. 

In  the  present  case  the  first  instruction  given  on  the  part  of 
the  prosecution  was  the  statutory  definition  oi  ••murder.*' 
Then  followed  statutory  definitions  of  "  express  malice,"  ••  man- 
slaughter," "justifiable  homicide,"'  what  is  sulHcii-nt  to  justify 
such  homicide,  and  of  •'  self-defense." 

The  principal  ground  of  error  relied  upon  by  counsel  for  the 
accused  appeal's  to  be  the  giving  of  the  fourth  instruction  on 
the  part  of  the  people.  This  instruction  is  a  literal  copy  of 
section  36  of  the  (.'riminal  Code,  and  is  as  follows: 

•'The  killing  being  proved,  the  burden  of  proving  circum- 
stances of  mitigation,  or  that  justify  or  excuse  the  homicide, 
will  devolve  on  the  accused,  unless  the  proof  on  the  part  of  the 
prosecution  suiHciently  numifests  that  the  crime  committed 
only  amounts  to  numslaughtei',  or  that  the  accused  was  justi- 
fied or  excused  in  committing  the  homicide."    Gen.  Laws,  207. 

Counsel  say : 

"This  instruction  was  inapplicable  to  the  cause  on  trial; 
that  it  is  only  applicable  when  the  prosecution  is  able  to  prove 
the  fact  of  killing  without  showing  the  circumstances  of  the 
homicide;  that  it  instructs  the  jury  that  the  people,  having 
proved  the  killing,  have  made  out  their  case,  and  it  is  then  for 
the  defendant  to  establish  his  defense  by  a  preponderance  ot 
evidence;  that  evidence  sulhcient  to  create  a  I'eason.ible  doubt 
of  his  guilt  would  not  be  sulHcient  to  authorize  an  acquittal; 
that  the  court  assumed  by  this  instruction  that  the  defendant 
committed  the  deed;  that  he  intended  to  do  it;  that  the  act 
was  committed  with  malice  aforethought,  express  or  implied, — 
whereas,  all  these  facts  should  have  been  found  by  the  jury 
from  the  evidence ;  that  the  burden  of  proof  never  shifts  on 
the  defendant  at  any  stage  of  the  proceedings, —  it  at  all  times 
remains  on  the  state;  that  the  fact  that  Kent  and  Bennett 
when  first  seen  were  fighting  does  not  entitle  the  people  to  the 


m 


•iio 


AMERICAN  CRIMINAL  REPORTS. 


|)resumption  that  Kent  brought  on  the  fight,  or  committed  a 
violent  assault  on  Bennett,  yet  this  is  just  what  the  instruction 
tells  the  jury." 

We  are  free  to  say,  if  this  section  only  of  the  statute  had 
been  given  to  the  jury  without  other  sections,  or  other  instruc- 
tions plainly  defining  the  crime  of  murder,  and  infonning  the 
jur}'  of  the  nature  and  weight  of  tiie  evidence  necessary  to 
justify  a  conviction,  there  would  be  strong  reasons  for  holding 
that  it  was  misleading.  lUit  such  is  not  the  fact.  This  section 
was  given  in  connection  witli  other  sections  of  the  statute, 
and  with  copious  instructions  from  the  court,  by  which  the 
offense  charged  and  included  in  the  indictment,  with  the  ma- 
terial elements  necessary  to  constitute  the  same,  were  clearly 
delined  and  explained.  The  jury  were  also  repeatedly  informed 
therein  that  all  the  facts  aiul  circumstances  wliich  were  neces- 
sary to  make  out  the  olfense  charged  must  be  jiroved  to  their 
satisfaction,  beyond  a  reasonal)Io  doubt,  or  a  verdict  of  guilty 
would  be  unwarranted. 

In  consecpience  of  the  numerous  obj(X'tions  urged  to  the 
giving  of  the  fourth  instruction,  the  sanu>  being  a  literal  copy 
of  section  'AC*  of  the  Criuiinal  (.'ode,  as  above  stated,  we  will 
give  our  pailicular  attention  to  the  consideration  of  this  section. 
It  was  originally  copied  into  our  statutes  from  the  statutes  oi 
the  state  of  Illin<Ms,  but  some  of  the  principles  1  herein  contained 
had  their  origin  far  back  in  the  history  of  the  common  law. 
The  application  of  these  })rinciples  in  practice  has  given  rise  to 
much  learned  discussion,  both  in  this  country  and  in  England, 
and  has  resulted  in  differences  of  opinion,  both  among  the 
judiciary  and  commentators  on  comnn^n  ami  statutory  hiw.  A 
lea<ling  case  upon  one  side  of  the  controversy  in  this  country  is 
Coi/r.  V.  Yofl',  9  Mete,  98.  This  case,  howevei',  was  decided 
by  a  divided  court.  The  interpretation  ari-ived  at  by  the  major- 
ity of  the  court, although  written  and  annouju'ed  by  one  of  tlie 
mo.st  eminent  jurists  of  America  (the  late  Chief  Justice  Shaw), 
did  not  prove  wholly  satisfactory,  either  to  the  bench  or  the 
bar.  The  opinion  is  a  lengthy  one,  but  the  doctrine  announced, 
as  stated  in  the  syllabus,  was  brief.     It  was: 

"When,  on  the  trial  of  an  indictment  for  murder,  the  killing 
is  proved  to  have  been  committed,  and  nothing  further  is 
shown,  the  presumption  of  law  is  that  it  was  malicious,  and  an 


■    '®f''  ■  ^ 


KENT  V.  PEOPLE. 


411 


iTtiittcd  a 
istruction 

itute  luul 
;r  instruc- 
iiiiny  the 
pessary  to 
ir  holding 
lis  section 
e  statute, 
vhich  tlie 
h  the  ma- 
re clearly 
'  informed 
ore  neces- 
nl  to  their 
,  of  guilty 

0(1   to  the 
toral  copy 
'd,  wo  will 
lis  section, 
statutes  of 
contained 
union  law. 
von  rise  to 
}  England, 
unong  the 
[•y  hiw.    A 
,  country  is 
as  decided 
the  major- 
one  of  the 
tico  Shaw), 
noli  or  the 
announced, 

the  killing 

further  is 

ous,  and  an 


act  of  murder,  and  proof  of  matter  of  excuse  or  extenuation 
lies  on  the  defendant." 

The  princijial  questions  discussed  related  to  the  lurden  oj 
2>roqf  and  implied  vudlce.  Upon  the  trial  bolow,  after  the 
jury  had  received  the  instructions  of  the  court,  and  had  been 
in  consultation  for  several  hours  in  their  chamber,  thoy  sent 
into  court  the  following  question:  "Were  the  jury  instructed 
by  the  court  that  the  prisoner  must  prove  provocation  or  mut- 
ual combat,  and  was  not  to  have  the  benefit  of  any  doubts  on 
the  subject?"  The  question  was  answered  by  the  court  in  an 
instruction,  upon  which  error  was  afterwards  assigned  in  the 
supi'eme  court.  The  rule  laid  down  in  the  instruction  is  thus 
stated  in  the  opinion  of  the  chief  justice: 

"The  eircct  of  the  rule  presented  to  the  jury  was  that,  if  it 
was  ])roved  beyond  a  reasonable  doubt  that  the  tlefendant  had 
wilfully  and  voluntarily  inflicted  a  mortal  wound  upon  the 
deceased,  malice  was  to  be  inferred  from  the  act,  unless  such 
facts  were  [n-oved  by  a  preponderance  of  evidence  as  would 
e.xteiiuatc  the  homicide  and  reduce  it  to  manslaughter.  This 
rule  seems  to  rest  upon  well-settled  ])rinciples,  and  to  be  sup- 
ported by  a  great  weight  of  authorities." 

Among  the  citations  in  favor  of  the  foregoing  doctrine  is  a 
case  decided  in  the  reign  of  James  I.,  wherein  it  was  held  "  that, 
if  the  fact  of  tlie  killing  is  jn'oved,  and  in  this  proof  of  the  hom- 
icide no  excuse  or  extenuation  ajipears,  no  other  i)roof  of  malice 
need  be  given;  the  malice  is  proved  by  the  act,  and  a  convic- 
tion of  murder  must  necessarily  follow.  It  is  an  act  done  malo 
(inhno,  and  without  excuse  or  justification  which  can  be  proved." 
The  rule  as  to  the  burden  of  jiroof  laid  down  in  the  York  Case 
was  based  largely  upon  the  practice  formerly  prevailing  in 
i'es[)ect  to  special  verdicts.  Under  that  })ractice,  the  jury  were 
recpiiriHl  to  find  the  facts  which  had  been  prooal  in  the  case 
according  to  established  rules  of  evidence,  and  the  court  ])ro- 
nounced  the  law  arising  thereon.  Chief  Justice  Shaw,  in  refer- 
ring to  this  practice,  says: 

"In  cases  of  special  verdicts  the  jury  do  not,  in  terms,  find 
that  the  homicide  was  malicious,  nor  do  they  return  negatively 
that  there  was  no  provocation  or  sudden  quarrel.  They  return 
the  facts;  of  course,  the  facts  proved,  and  no  others.  If,  upon 
these  facts,  the  court  conclude  that  there  was  a  homicide  with 


'  ?'i:' 


412 


AMERICAN  CRIMINAL  REPORTS. 


malice,  judgment  is  rendered  for  murder;  because  wliotlici- 
malicious  or  not  is  nuitter  of  law.  .  .  .  From  this  view  of 
tiie  immemorial  usaj^e  of  the  courts  upon  special  verdicts,  ii 
appears  manifest  that  the  fact  of  the  killing-  is  piHtnaf(i<-u  evi- 
dence of  malice,  and,  unless  overcome  by  ])repondcratino'  pn/ot' 
the  other  way,  it  must  be  held  uuirder,  and  judgment  go  accord- 
ingly." 

He  further  states  the  lUjctrine  to  bo  that  proof  beyond  a 
reasonable  doubt  is  necessary  to  establish  a  fact  a<jaliifit  tlic 
accused,  but  preponderating  proof  is  sullicieut  to  establish  a 
fact  in  his  favor,  and  illustrates  the  principle  by  considering 
how  the  case  would  stand  on  a  special  verdict.  In  such  case, 
only  facts  in  favor  of  the  accused  whieh  were  i)roved  by  a  pre- 
ponderance of  testimony  could  be  returned  by  the  jury,  and 
those  not  so  established  would  not  be  considered  in  the  case. 
Foster's  Crown  Law  is  also  refei-red  to,  and  quotations  like  the 
following  taken  therefrom :  '•  I  have  already  premised  that  who- 
ever would  shelter  himself  uiuler  the  plea  of  provocation  n  'ist 
prove  his  case  to  the  satisfaction  of  the  jury."  "Justification 
or  excuse,"  says  Judge  Shaw,  "must  depend  on  t.ho  existence 
of  facts,  and  such  facts  must  be  proved  and  found  in  order  to 
be  the  basis  of  any  judicial  decision."  By  way  of  illustration 
of  the  rule  laid  down  in  the  instruction,  and  indorsed  by  the 
court,  he  said : 

'•  Suppose  a  party  indicted  for  manslaughter,  and  the  defense 
should  be  excusable  self-defense;  suppose  the  fact  of  killing 
should  be  clearly  proved,  but  an  attempt  to  prove  a  previous 
violent  attack  upon  him  by  the  deceased  should  fail,  although 
the  evidence  might  tend  to  raise  some  doubt  whether  there 
M'as  not  such  previous  attack, —  the  conviction  in  such  case 
must  rest  on  proof  establishing  the  coi'pHs  delicti  beyond  reason- 
able doubt,  although  the  whole  evidence  would  raise  a  doubt 
whether  there  had  not  been  such  i)revious  attack.  The  prooi' 
establishing  the  necessity  for  such  taking  of  life  in  self-defens(; 
must  be  satisfactorilv  made  out.  liaising  a  doubt  would  ix' 
insufficient." 

If  the  foregoing  was  the  doctrine  of  the  common  law  in 
respect  to  the  legal  infertnce  of  malice  from  the  mere  act  of 
killing,  and  in  respect  to  the  hurden  of  proof  in  cases  of  homi- 
cide, the  doctrine  has  certainly  been  modified  by  our  statute. 


KENT  V.  PEOPLE. 


418 


and 


It  is  our  opinion  that  the  ingredicjit  of  inalico  npccssary  to 
c'onstitiito  tijo  crime  of  miinler  undtM-  our  statute  is  a  question 
of  fact  to  be  found  by  the  jury,  and  not  a  ([ucstion  of  law  to 
be  inferred  by  tlie  court.  We  are  also  of  opinion  that  the  bur- 
den of  proof  rests  upon  tlie  state  to  prove  to  the  satisfaction 
of  the  jury,  beyond  a  reasonable  <loul)t,  the  existence  of  all 
the  mntcrial  elements  necessary  to  constitute  the  crime  of 
nuu'der  as  defined  by  the  statute.  We  further  hold  that  to  en- 
iilde  the  jury  to  return  a  true  verdict,  in  accordnnce  with  the 
oath  to  be  taken  by  them  severally,  and  as  an  act  of  impartial 
Justice  to  the  prisoner,  the  entire  ren  (fMiv  should  be  laid  before 
the  jury,  to  be  considered  as  a  whole,  without  distinction  as  to 
what  party  introduced  the  several  matters  of  evidence;  and  if 
upon  such  consideration  a  rea.sonalde  doubt  exists  as  to  the 
•ruilt  of  the  prisoner  of  any  crime  included  in  the  indictment, 
he  must  be  ac(piitted.  This  rule  includes  all  matters  of  defense 
•^•rowing  out  of  the  res  (jcfifo;  which  iraverso  the  allegations  of 
the  indictment;  also  that  it  is  only  when  the  defendant  sets  up 
independent  matters  of  defense,  or  matters  in  avoidance  of  the 
allegr.tions  of  i;he  indictment,  that  a  different  rule  of  evidence 
prevails. 

Our  Criminal  Code  defines  the  elements  necessary  to  consti- 
tute either  a  crime  or  a  misdemeanor  as  follows: 

"Section  1.  A  crime  or  misdemeanor  consists  in  the  viola- 
tion of  a  public  law,  in  the  conimission  of  which  there  shall  be 
a  union  or  joint  operation  of  act  and  intention  or  criminal  neg- 
ligence. 

"Section  2.  Intention  is  manifest  by  the  circumstances  con- 
nected with  the  perpetration  of  the  offense,  and  the  sound 
mind  and  discretion  of  the  person  accused." 

It  defines  "  murder  "  to  be  "  the  unlawful  killing  of  a  human 
being,  in  the  peace  of  the  people,  Avitli  malice  aforethought, 
either  express  or  implied."  Gen.  Laws,  §  (U3.  "Express  mal- 
ice" is  defined  to  be  "  that  deliberate  intention  unlawfully  to 
take  away  the  life  of  a  fellow  creature  which  is  manifest  by 
external  circumstances  capable  of  pi'oof."  Id.,  §  614.  Implied 
malice  is  thus  defined :  "  Malice  shall  be  implied  when  no  con- 
siderable provocation  appears,  or  when  all  the  circumstances 
of  the  killing  show  an  abandoned  and  malignant  heart."  Id., 
55  615.    As  our  statute  stood  at  the  time  of  the  commission  of 


m 

v"^! 


414 


AMERICAN  CRIMINAL  REPORTS. 


M 


the  homicide  in  the  present  case,  the  amendment  of  Marcli  1, 
1881,  was  in  force.  An  indictment  for  mnrdor  in  the  first  de- 
gree, as  in  tliis  case,  inchided  also  mnrder  in  the  second  degree 
and  manslaughter.  The  penalty  for  murder  in  the  lirst  degree 
Avas  then,  as  now,  death  by  hanging;  but  to  authorize  a  judg- 
ment imposing  such  penalty,  it  was  required  by  the  statute  that 
the  jury  trying  the  cause  should  indicate  in  their  verdict  of 
guilty  that  tlie  killing  was  deliberate  or  premeditated,  or  was 
done  in  the  perpetration  or  attempt  to  perpetrate  some  felony. 
This  statute  further  provided  that  any  person  found  guilty  of 
murder  without  an  indication  in  the  verdict  whether  the  killing 
was  deliberate  or  premeditated,  or  was  done  in  the  perpetration 
or  attempt  to  perpetrate  some  felony,  should  be  sentenced  to 
confinement  in  the  penitentiary  for  and  during  such  person's 
natural  life. 

These  provisions  of  the  act  of  1881  had  previously  been  in- 
serted in  the  act  of  1870,  and  under  that  act  they  were  fully  con- 
sidered' by  this  court  in  the  case  of  //ill  v.  Pfoplc^  1  Colo.,  4.'5(^, 
wherein  the  opinion  of  the  court  was  rendered  by  Chief  Justice 
Hallett.  It  is  there  said  that  the  words  "deliberate"  and 
"premeditated  "  refer  to  the  s])eciHc  intent  with  which  the  act 
was  done;  also  that  they  are  used  to  denote  the  action  of  the 
mind,  and  involve  the  idea  of  thought  .and  reflection;  that  to 
constitute  murder  in  the  first  degree  the  killing  must  be  ac- 
companied by  a  premeditated  or  specific  intention  to  tak«>  life, 
and  if  such  a  specific  intention  did  not  e.xist,  the  offense  was 
murder  in  the  second  degree.  The  opinion  further  holds  that 
whether  such  intention  existed  or  not,  was,  by  the  terms  of  the 
act,  referred  to  the  jury;  and  from  these  considerations  the 
court  holds  that  the  specific  intention  to  take  life  is  matter  of 
fact,  to  bo  found  by  the  jury,  and  is  not  an  inference  or  pre- 
sumption of  law.  We  fully  indorse  this  reasoning,  but  it  is 
our  opinion  that  the  same  rule  of  evidence  prevails  under  the 
statute  in  the  case  of  murder  in  the  second  degree.  The  same 
reasons  substantially  exist ;  for,  as  we  have  seen,  in  order  to 
constitute  any  crime,  however  trivial,  there  must  be  the  viola- 
tion of  a  public  law,  in  the  commission  of  which  there  must  be 
a  union  or  joint  operation  of  act  and  intention,  or  criminal 
negligence.  Buckner  v.  Com.y  14  Bush,  601-604;  Roberts  v. 
People,  19  Mich.,  414. 


KENT  t'.  PEOPLE. 


415 


Vfiirch  1, 
first  de- 
ll (Icj^rce 
?t  degree 
;  a  judfT- 
tutc  tliat 
erdict  of 
:1,  or  was 
le  felony, 
guilty  of 
lie  killing 
potration 
tenced  to 
I  person's 

^^  been  in- 
f  uUy  con- 
)olo.,  4:50, 
ef  Justice 
•ate"  and 
ch  the  act 
on  of  the 
i;  that  to 
ist  be  ac- 
tako  life, 
Tense  was 
lolds  that 
■ms  of  the 
itions  the 
matter  of 
36  or  pre- 
■,  but  it  is 
under  the 
The  same 
order  to 
the  viola- 
re  must  be 
criminal 
Roherts  v. 


The  ingredient  of  malice  must  be  found  to  exist  as  to  both 
dcn-ees  of  murder.  The  distinguishing  feature  between  mur- 
der in  the  first  degree  and  murder  in  the  second  degree,  as  held 
in  Jl/'/l  '?'.  J.*(^opf(',  fii/pra,  is  that  to  constitute  murder  in  the 
iirst  degree  the  jury  must  find  "  premeditation,''  or  a  specific 
intent  to  take  life,  and  specify  the  same  in  their  verdict; 
whereas,  if  said  fact  be  not  found  and  specified  in  the  verdict, 
it  is  imirder  in  llio  second  degree.  But  aside  from  this  distin- 
guishing feature,  the  same  elements  arc  necessary  to  constitute 
the  crime  of  murder  in  either  degree.  In  both  cases  there 
must  be  the  violation  of  a  public  law.  in  the  commission  of 
which  there  must  be  a  union  or  joint  operation  of  act  and  in- 
tention. There  must  also  be  the  unlawful  killing  of  a  humau 
heing  in  the  jieace  of  the  people,  and  such  killing  must  be  Avitli 
malice  aforethought.  The  existence  of  these  elements  is  to  be 
found  by  the  jury  trying  the  cause,  either  from  the  proof  of 
circumstances  which  manifest  a  deliberate  intention  unlaAvfully 
totak<>awiiy  life,  or  as  inferences  of  fact  to  be  drawn  from 
the  circumstances  attending  the  killing,  which  clearly  indicate, 
either  that  no  considerable  provocation  operated  on  the  mind 
of  the  slayer,  or  that  he  acted  under  the  imi)ulses  of  an  aban- 
doned and  malignant  heart. 

The  jury  is  sworn  to  return  a  true  verdict  according  to  the 
evidence.  A  verdict  of  guilty  must  therefore  l)e  based  upon 
l)roof  of  the  facts  charged  in  the  indictment,  or  upon  proof  of 
other  facts  or  circumstances  in  addition  to  the  fact  of  killing 
from  which  the  existence  of  the  ingredients  necessary  to  con- 
stitute the  crime  can  be  faiidy  inferred.  Evidence  short  of  this 
will  not  authorize  a  conviction  under  the  provisions  of  our 
Criminal  Code.  The  presum])tions  and  inferences  just  men- 
tioned are  not  presumi)tions  of  law,  but  of  fact,  to  be  drawn 
by  the  jury  from  the  evidence  of  facts  and  circumstances 
attending  and  surrounding  the  commission  of  the  homicide. 
F,firh  V.  Cm.,  14  liush,  371;  Sfokes  v.  People,  53  N.  Y., 
17T-180;  J?ish,  Crim,  L.,  673i;  Prof,  Jur,,  sec,  331,  Mr, 
Wharton,  in  his  work  on  ITomicide,  mentions,  among  other 
presum[)tions  of  fact,  the  inference  of  criminal  intent  or  malice 
drawn  from  an  illegal  act,  and  says  that  presumptions  of  this 
class  are  of  fact,  and  not  of  law,  and  are  simply  logical  in- 
ductions.    Whart.  Il(  m.,  §  045. 


1 

m 

''j'!^/' 


4:16 


AMERICAN  CRIMINAL  REPORTS. 


Judge  Ilallett,  in  the  case  above  cited,  says: 
"  If  a  person  deliberately  use  a  deadly  weapon  in  a  manner 
likely  to  produce  harm,  upon  every  principle  by  whicli  we  may 
iudofe  of  motives  of  men  we  mav  sav  that  he  intends  to  dcstrov 
life,  and  we  determine  this  psychological  fact  from  our  experi- 
ence of  the  operations  of  the  mind;  and  therefore  we  think 
this  a  natural  presumption,  as  distinguished  from  a  legal  pre- 
sumption." 

Mr.  Bouvier  tlius  defines  presumptions  of  fact: 
"  Presumptions  of  fact  are  inferences  as  to  the  existence  of 
some  fact  drravn  from  the  existence  of  some  other  fact;  in- 
ferences which  common  sense  draws  from  circumstances  usually 
occurring  in  such  cases.''  "  Presumptions  of  fact  are  derived 
wholly  and  directly  from  circumstances  of  tlio  particular  case, 
by  means  of  the  common  experience  of  mankind."' 

Referring  now  to  section  3*}  of  the  statute,  which  )>rovides 
that,  "the  killing  being  pi'oved.the  burden  of  proving  circum- 
stances of  mitigation,  or  that  justify  or  excuse  the  homicide, 
will  devolve  on  the  accused,  unless  the  pi'oof  on  the  part  of 
the  prosecution  sufficiently  manifests  that  tin;  crime  committed 
only  amounted  to  manslaughter,  or  that  the  accused  was  justi- 
fied or  excused  in  committing  the  homicide,"'  Ave  observe  that 
this  section,  considered  by  itself,  mi<iht  be  held,  under  the  rule 
laid  down  in  the  case  of  Com.  v.  Y<n'l%  supra,  to  announce  a 
different  rule  from  that  which  could  l)e  derived  from  the  other 
provisions  of  our  statute  above  quoted,  and  to  be  in  conflict 
therewith.  Section  30,  so  construed,  would  authorize  a  pre- 
sumption of  law  from  the  act  of  killing  alone,  which  would, 
of  its  own  force,  constitute  the  crime  of  murder,  and  authorize 
a  vei'dict  of  guilty  of  that  offense,  unless  there  was  other  proof 
on  the  part  of  the  prosecution  which  would  rebut  such  legal 
presum[)tion.  Such  a  construction,  however,  would  render  tin? 
section  wholly  inconsistent  with  all  other  provisions  of  our 
Criminal  Code;  from  which  it  is  reascmable  to  infer  that  no 
such  construction  was  ever  intended,  but  that  the  design  of 
our  law-makers  was  that  it  should  be  construed  in  connection 
with  the  sections  defining  the  elements  of  the  crime  mentioned. 
The  doctrine  announced  in  the  Vorl'  /Wwdoes  not,  in  any 
degree,  rest  upon  the  statutes  of  the  commonwealth  of  .^^assa- 
chusetts,  but  is  derived  wholly  from  the  principles  and  rules  of 


KENT  V.  PEOPLE. 


417 


I  manner 
1  we  may 
,0  destroy 
ur  expcri- 
we  think 
legal  pre- 


:lstence  of 
r  fact;  in- 
jes  usually      , 
re  derived 
cular  case. 

h  ])r()vides 
nir  circum- 
iioiuiciile, 
ho  i)art  of 
committed 
I  was  justi- 
bscrvo  that 
ler  the  rule 
mnounce  a 
n  the  other 
in  conflict 
rize  a  prc- 
lich  would, 
d  authori/.e 
other  proof 
such  legal 
render  the 
ions  of  our 
fer  that  no 
e  design  of 
connection 
mentioned, 
not,  in  any 
1  of  .Massa- 
and  rules  of 


decision  found  in  the  common  law.    In  proof  of  this  statement 
we  quote  the  words  of  Chief  Justice  Shaw  himself,  who  says : 

"But  our  statutes  nowhere  define  murder  or  manslaughter. 
They  do  not  declare  what  acts  shall  constitute  either  of  the 
offenses,  nor  what  acts^of  homicide  shall  be  deemed  justifiable 
or  excusable.  We  are,  then,  obliged  to  seek  for  these  rules 
and  principles  in  the  common  law." 

The  opinion  traces  the  law  of  murder,  and  the  rules  of  pre- 
sumption concerning  it,  back  to  ancient  times.  The  curious 
historical  fact  is  mentioned  in  this  connection  that  "in  the 
times  of  the  Danes,  and  afterwards  in  the  times  of  the  Nor- 
mans, certain  arbitrary  presumptions  were,  by  express  enact- 
ment, to  be  raised.  Ilomiciiie  was  not  then  considered  murder, 
unless  it  was  secret.  Among  other  extraordinary  provisions,  it 
is  stated  that  before  the  statute  of  ]\Iarlbridge,  as  the  law 
stood  or  was  interpreted,  if  a  man  was  found  to  be  slain 
secretly  it  was  always  intended  (1)  that  he  was  a  Frenchman; 
(2)  that  he  was  killed  by  an  Englishman;  (3)  that  the  killing 
was  murder;  {i)  that  if  any  one  was  apprehended  to  be  the 
murderer  he  was  to  be  tried  by  lire  and  water  (i.  e.,  by  ordeal), 
though  he  killed  him  by  misfortune." 

Justice  Wihle,  in  iiis  dissenting  oi)inion  in  the  same  case,  in 
commenting  u))on  tiio  presumption  of  law  laid  down  by  the 
court,  that  the  fact  of  the  killing  alone,  when  nothing  else  was 
shown,  constituted  murtler,  says: 

''  Such  a  i)resumptiou  is  not  sup])orted,  as  it  seems  to  me,  by 
any  binding  authority.  It  had  its  origin  in  a  barbarous  age, 
when  the  rules  of  evidence,  as  now  established,  were  little 
known,  or  very  much  disregarded." 

Perhaps  this  presumption  had  the  sam'>  origin  as  the  pre- 
sumption referred  to  by  Chief  Justice  Waldo,  of  Oregon,  in 
State  V.  O'Ncll,  9  AVest  Coast  Hep.,  158,  which  he  says  was 
unheard  of  since  the  time  of  the  Stuarts,  quoting  in  illustra- 
tion of  those  times  the  observation  of  Mr.  Justice  Stephens,  in 
his  History  of  the  Criminal  Law  of  England,  that  "a  criminal 
trial  in  those  days  was  not  unlike  a  race  between  the  king  and 
the  iH'isoner,  in  which  the  king  had  a  long  start  and  the 
prisoner  was  heavily  weighted." 

It  is  our  judgment,  based  upon  the  foregoing  considerations, 
that  section  3tl  of  our  statute  must  be  construed  in  connection 
Vol.  V  — a? 


418 


AMEMCAN  CRIMINAL  REPORTS. 


.4ii 


Ml 


with  other  sections  of  the  statute  which  define  the  constituent 
elements  of  crime  generally,  and  the  elements  of  murder 
specially.  Thus  construed,  to  constitute  the  crime  of  murder 
in  either  degree,  there  must  be  tlie  violation  of  a  public  law 
by  the  killing  of  a  human  being  in  tbe  peace  of  the  people;  in 
the  killing  there  must  be  a  union  or  joint  operation  of  act 
and  intention ;  and  the  deed  must  be  malicious  to  such  a  de- 
gree as  to  come  within  the  expression  or  phrase,  "  with  malice 
aforethought^  either  express  or  implied^  While  this  statement 
of  the  otfense  concedes  that  the  element  of  malice  may  be  im- 
plied, yet  it  is  plain  that  the  implication  is  to  be  made  by  the 
jury  trying  the  cause  from  the  proof  of  facts  and  circumstances 
sufficient  to  warrant  such  implication.  Malice,  in  such  case,  is 
an  inference  of  fact,  and  not  of  law.  IIopps  v.  People^  31  III., 
392. 

The  supreme  court  of  Michigan  say,  in  ^^eUar  v.  People^  30 
Mich.,  20,  that  "  there  is  no  rule  recognized  as  authority  which 
allows  a  conviction  of  murder  where  a  fatal  result  was  not  in- 
tended, unless  the  injury  intended  was  one  of  a  very  serious 
character,  Avhich  might  naturally  and  commonly  involve  loss 
of  life  or  grievous  mischief."  The  court  further  say  that  any 
doctrine  which  would  hold  every  assailant  as  a  murderer, 
where  death  follows  his  act,  would  bo  bai'barous  and  unrouson- 
able.  Mr.  Wharton,  in  his  work  upon  Criminal  Evidence 
(section  738),  says  the  doctrine  that  malice  and  intent  arc  pre- 
sumptions of  law,  to  be  presumed  from  the  mere  act  of  the 
killing,  belongs,  even  if  correct,  to  purely  speculative  jurispru- 
dence, and  cannot  be  applied  to  any  case  that  can  ])ossibly 
arise  before  the  courts ;  that  in  no  case  can  the  prosecution 
limit  its  proof  to  the  mere  act  of  killing. 

The  several  sections  of  the  statute  being  construed  together, 
as  we  think  they  must  be,  it  is  evident  that,  before  the  accused 
can  be  convicted  of  murder,  or  called  u])on  to  produce  evidence 
in  justitictation  or  mitigation  of  such  an  otfense,  the  prosecu- 
tion must  mcake  out  such  a  case  as  will,  under  the  law,  siinfain 
a  verdict  of  guilty.  Proof  of  the  mere  abstract  fact  that  the 
accused  killed  the  deceased  will  not  sustain  such  a  verdict. 
Such  proof  does  not  establish  the  mat<;rial  elements  of  the 
crime  of  murder.  To  give  the  killing  the  legal  character  of 
murder  it  must  have  been  done  with  malice  aforethought. 


KENT  V.  PEOPLE. 


419 


mstituent 
E   murder 
>f  murder 
lublic  law 
people;  in 
on  of  act 
such  a  de- 
ith  malice 
statement 
nay  be  ira- 
ade  by  the 
mmstances 
ich  case,  is 
,j)le,  31  111., 

Peoj^h,  30 
ority  which 
was  not  in- 
rery  serious 
involve  loss 
ly  that  any 
,  murderer, 
d  unreason- 
il  Evidence 
Lint  are  pre- 
I  act  of  the 
ive  jurispru- 
?an  possibly 

prosecution 

led  together, 

the  accused 

uce  evidence 

the  prosecu- 

law,  svntain 

fact  that  the 

ch  a  verdict. 

iiients  of  the 

character  of 

laforethought. 


This  necessary  ingredient  cannot  be  inferred  from  the  act 
alone,  but  must  be  proved,  or  circumstances  of  the  killing 
proved  from  which  it  can  be  inferred  as  a  fact  in  the  case.  The 
aocrinent  of  the  killing  alone  in  the  indictment  would  be  bad, 
and  evidence  limited  to  such  abstract  fact  as  "  A.  killed  B." 
would  be  inadmissible,  as  stating  simply  an  opinion.  The  state 
must  go  further,  and  prove  the  essential  elements  of  the  crime 
charged. 
In  Maker  v.  People,  10  Mich.,  217,  the  court  say: 
"  Homicide,  or  the  mere  killing  of  one  person  by  another, 
does  not  of  itself  constitute  murder.  It  nuiy  be  murder  or 
manslaughter,  or  excusable  or  justifiable  homicide,  and  there- 
fore entirely  innocent,  according  to  the  circumstances  or  dis- 
position or  state  of  mind  or  purpose  which  induced  the  act. 
It  is  not,  therefore,  the  act  which  constitutes  the  offense  or  de- 
termines its  character,  but  the  quo  animo, —  the  disposition  or 
state  of  mind  with  which  it  is  done.'' 

It  is  neccissary,  therefore,  to  constitute  murder  under  a  state 
statute,  tliat  the  killing  be  done  in  the  mode  described  by  the 
statute.  It  is  only  when,  in  addition  to  the  "killing,"  facts 
and  circumstances  attending  or  surrounding  the  homicide  are 
laid  before  the  jury  that  the  necessary  inferences  of  fact  to 
complete  the  crime  can  be  rightfully  drawn.  Whart.  Crim. 
Ev.,  §  738.  The  last  mentioned  author  further  says  it  is  per- 
fectly proper  to  tell  a  jury  that,  from  certain  circumstances — 
as  the  use  of  a  deadly  wea[)on,  severe  wounds  or  threats, —  in- 
tent and  malice  may  be  rightly  inferred  as  inferences  of  fact. 
In  regard  to  the  use  of  a  deadly  weapon,  Mr.  Bishop  says: 
"As  a  general  doctrine,  subject  to  some  qualifications,  the 
malice  of  murder  is  conclusively  inferred  from  the  unlawful 
use  of  a  deadly  weapon,  resulting  in  death."  2  Bish.  Crim. 
Proc,  §  680.  An  instruction  to  this  effect  was  given  in  Olem 
V.  State,  31  Ind.,  484,  which  was  held  to  be  erroneous  and  at 
variance  with  principles  which  have  received  the  uniform  sanc- 
tion of  all  the  courts  in  this  country  and  Great  Britain.  The 
objection  was  that  it  was  not  a  conclusive  presumption;  for,  if 
such,  no  evidence  would  be  admissible  to  show  that  the  act 
was  done  in  n(!cessary  self-defense,  or  that  the  killing  was  ex- 
cusable and  not  felonious. 


.4   ' 


420 


AMERICAN  CRIMINAL  REPORTS. 


la  Head  v.  State,  44  Miss.,  735,  it  is  said : 

"  The  use  of  a  deadly  weapon  is  prima  facie  evidence  of 
malice,  because  a  man  must  be  taken  to  intend  the  necessary 
and  usual  consequences  of  his  act.  To  shoot  or  stab  or  strike 
with  a  bludgeon  indicates  a  purpose  to  take  life-  but  if  the 
one  or  the  other  be  employed  to  disable  an  adversary  in  the 
very  act  of  making  a  murderous  and  malicious  assault,  then 
the  presumi)tion  is  overcome.  .  .  .  To  use  a  deadly  weapon 
justifies  the  inference  that  the  accused  meant  to  kill,  but 
whether  he  was  excusable  on  the  ground  of  self-defense  de- 
pends on  the  facts  and  circumstances  with  which  he  was  en- 
vironed at  the  time." 

If  a  person  deliberately  uses  a  deadly  weapon  on  another,  it 
must  be  inferred  from  the  circumstances  showing  the  delibera- 
tion that  it  was  malicious.  8uch  circumstances  fully  authorize 
the  jury  to  find  the  ingredient  of  malice.  The  inference  is 
not  di'awn  from  the  use  of  the  weapon  only,  but  from  the 
proof  of  its  deliberate  use. 

One  of  the  objections  urged  by  counsel  for  defendant,  Kent, 
to  the  giving  of  section  ;3»J  as  an  instruction  to  tlie  jury,  is  that 
it  is  oidy  ai)plicable  wlien  the  prosecution  is  able  to  prove  the 
fact  of  the  killing  without  showing  the  circumstances  of  the 
homicide.  This  objection  results  from  an  eri'oneous  view  of 
the  statute.  AA'ijcn  the  circumstances  sun-ounding  the  com- 
mission of  the  homicide  are  produced  in  evidence  on  the  part 
of  the  state,  as  it  is  concetled  they  were  in  this  case,  all  mat- 
ters, if  any,  which  go  to  justif}'  or  excuse  the  kdling  must  be, 
by  the  terms  of  the  section  itself,  considered  in  favor  of  the 
deftntlant;  and  if  sutticient  to  manifest  thaj  the  accused  was 
justilied  or  excused  in  committing  tlio  homicide,  he  is  not 
bouiul  to  prove  it  by  afiirmative  evidence  in  his  own  be- 
half. The  duty  of  the  jury  in  such  case  would  be  to  inspect 
and  consider  the  evidence  with  respect  to  its  sulliciency  to  es- 
tablish the  crime.  It  would  also  be  their  duty  to  examine  and 
weigh  the  same  with  respect  to  matters  of  mitigation,  justifica- 
tion or  excuse;  and  if,  upon  the  whole  evidence,  a  reasonable 
doubt  existed  in  the  minds  of  the  jury  as  to  the  guilt  of  the 
defendant,  it  would  be  their  duty  to  return  a  verdict  of  not 
guilty.     Alexander  v.  People,  90  111.,  96. 


im 


KENT  V.  PEOPLE. 


421 


dence  of 

[lecessiiry 
or  strike 
ut  if  the 
ry  in  the 
iiult,  tlien 
y  weapon 

kill,  but 
efensc  de- 
,6  WHS  en- 
moth  ov,  it 
0  dclihcra- 
r  authorize 
iferouce  is 

from  the 

hint,  Kent, 
ury,  is  that 
prove  the 
ices  of  the 
us  view  of 
r  the  com- 
)n  the  part 
se,  all  niat- 
jr  must  be, 
Lvor  of  the 
ecusecl  was 
he   is  not 
own  be- 
to  inspect 
ency  to  os- 
xamine  and 
m,  justitica- 
reasonable 
<ruilt  of  the 
diet  of  not 


IS 


The  proposition  of  defendant's  counsel  that  the  burden  of 
proof  never  shifts  on  the  defendant  at  any  stage  of  the  pro- 
ceedings is  not  strictly  correct.  It  is  true  the  state  must  prove 
the  offense  charged  beyond  a  reasonable  doubt.  The  statute 
then  casts  the  burden  of  proof  as  to  matters  of  mitigation  or 
excuse  upon  the  defendant.  Tiie  public  prosecutor  cannot  be 
compelled  to  search  for  and  put  in  evidence  all  the  facts 
connected  with  the  transaction,  or  exculpatory  facts  in  the 
prisoner's  favor.  The  polic}'  of  the  law,  as  evinced  by  the  pro- 
sumption  of  innocence  and  the  doctrine  of  reasonable  doubt, 
would  require  the  public  prosecutor  to  introduce  such  proof  as 
will  give  a  fair  account  of  the  transaction.  This  being  done, 
it  devolves  upon  the  defendant  to  produce  in  evidence  such 
matters  of  mitigation,  justitlcation,  or  excuse,  if  any  such  exist, 
as  may  tend  to  explain  his  action  and  show  the  necessity  there- 
for; otherwise  a  verdict  of  guilty  must  necessarily  be  returned 
against  him.  lie  is  not  required  by  the  statute,  however,  to 
prove  such  circumstances  beyond  a  reasonable  doubt,  or  to 
the  extent  of  satisfactorily  establishing  his  defense.  He  is  only 
required  to  prove  the  same  as  any  other  facts  are  required  to 
be  proved ;  and  if  the  matters  relied  on  be  supported  by  such 
proof  as  would  produce  a  reasonable  doubt  in  the  minds  of  the 
jury  as  to  the  guilt  of  the  prisoner,  when  the  whole  evidence 
concerning  the  transaction  conies  to  be  considered  by  the  jury, 
the  rule  of  law  is  that  there  must  be  an  acquittal.  Alexander 
V.  People,  90  111.,  96. 

It  is  but  fair  to  the  jury,  upon  whom  is  cast  the  grave  re- 
sponsibility of  determining  the  prisoner's  guilt,  as  well  as  his 
fate  in  respect  to  life  or  liberty,  that  all  the  facts  comprising 
the  res  gcntoB  should  be  spread  before  them ;  and  when  wo  con- 
sider that  every  man  is  presumed  to  be  innocent  until  his  guilt 
is  made  to  appear  beyond  a  reasonable  doubt,  and  that  the 
burden  of  proof  to  this  extent  rests  upon  the  state,  it  is  but 
fair  to  the  prisoner  that  the  whole  transfiction,  and  not  a  select 
part  of  it,  should  be  before  the  jury  to  be  considered  by  them 
as  the  evidence  in  the  case,  and  not  as  the  evidence  of  contest- 
ing parties  in  the  case.  Criminal  prosecutions  are  not  to  be 
regarded  or  conducted  as  contests  between  individuals  respect- 
ing civil  rights,  wherein  advantages  not  reaching  the  merits  may 
be  gained  by  one  party  over  another.     The  policy  of  the  gov- 


rn 


422 


AMERICAN  CRIMINAL  REPORTS. 


^1 

'"in- 

...~  f  ■■■-f'i' 

-     (, 

m 

1 

i  •  k  : 
1    ' 

eminent  is  to  punish  only  those  who  violate  the  law,  and  to 
protect  the  innocent  in  all  cases.  Usually  the  character  of  the 
crime  is  demonstrated  by  the  same  evidence  which  establishes 
it;  and,  if  the  accused  is  compelled  to  give  in  evidence  some 
of  the  attending  circumstances,  the  same  rule  should  be  applied 
as  if  the  whole  had  been  frankly  presented  by  the  state.  It 
may  therefore  be  laid  down  as  the  established  doctrine  of  this 
state,  that,  as  to  all  facts  in  evidence  properly  constituting 
part  of  the  res  gestw,  they  are  to  be  considered  by  the  jury,  in 
passing  upon  the  question  of  guilt  or  innocence,  without  dis- 
crimination as  to  the  rules  of  evidence,  whether  introduced  by 
the  prosecutor  or  the  defendant.  Hill  v.  People,  1  Colo.,  452; 
State  V.  Porter,  34  Iowa,  140;  Eoscoe,  Crim.  Ev.  (7th  ed.),  135. 

In  Maker  v.  People,  supra,  it  is  held  that  in  criminal  prose- 
cutions the  whole  of  the  res  gestm  should  be  before  the  jury,  so 
as  to  show  the  real  nature,  state  of  mind,  and  intention  with 
which  the  act  was  done ;  that  the  object  of  the  trial  should  be 
to  show  the  real  nature  of  the  whole  transaction,  whether  its 
tendency  be  to  establish  guilt  or  innocence.  It  is  there  sug- 
gested that  any  inference  drawn  from  a  detached  portion  of  an 
entire  transaction  may  be  entirely  false.  In  Wellar  v.  People^ 
Hujpra,  the  court  held  it  to  be  the  duty  of  the  prosecutor  incases 
of  homicide  to  call  those  witnesses  who  were  present  at  the 
transaction,  or  who  can  give  direct  evidence  on  any  material 
branch  of  it,  unless,  possibly,  where  too  numerous.  In  Uurd, 
V.  People,  25  Mich.,  40G,  attention  was  called  to  a  fact  often  over- 
looked by  courts  as  well  as  prosecuting  officers,  that  "  a  public 
prosecutor  is  not  a  plaintiff's  attorney,  but  a  sworn  minister  of 
justice,  as  much  bound  to  protect  the  innocent  as  to  pursue  the 
guilty,  and  he  has  no  riglit  to  suppress  testimony."  The  lust 
case  further  holds  that  the  burden  of  proving  the  res  fjesf<r,  or 
whole  transaction,  so  far  as  the  evidence  thereof  is  attainable, 
rests  on  the  prosecution.  Section  36  of  our  Criminal  Codo  does 
not  require  the  prosecution  to  prove  the  entire  transaction,  as 
is  required  in  some  of  the  above  cases,  but,  in  view  of  the 
several  provisions  of  the  statute,  we  hold  that  when  the  proof 
relating  to  the  resgestoe  is  produced,  it  is  then  to  be  considered 
as  a  whole,  regardless  of  the  fact  that  both  parties  were  con- 
cerned in  its  production. 

A  different  rule  of  evidence  prevails  when  the  defendant 


^mF^: 


KENT  V.  PEOPLE. 


423 


w,  and  to 
ter  of  the 
istablishes 
Biice  some 
be  applied 
state.    It 
ne  of  this 
mstituting 
le  jury, itt 
ithout  dis- 
'oduccd  by 
Colo.,  452; 
li  ed.),  135. 
linal  ])rose- 
the  jury,  so 
jntion  with 
1  shouUl  be 
ivhethcr  its 
1  there  sng- 
artion  of  an 
r  V.  People^ 
itor  in  cases 
sent  at  the 
ny  material 
In  Ilnrd 
t  often  over- 
it  "  a  public 
t  minister  of 
o  pursue  the 
The  lust 
res  (jestiV.  or 
s  attainable, 
al  Code,  does 
ansaction,  as 
view  of  the 
en  the  proof 
»e  considered 
ies  were  con- 

le  defendant 


enters  upon  an  independent  defense,  and  attempts  to  prove  ex- 
trinsic facts  not  arising  out  of  the  res  gestm,  in  justification  or 
excuse,  or  in  avoidance  of  the  averments  of  the  indictment. 
The  rule  is  that  when  the  defense  set  up  is,  in  itself,  purely  ex- 
trinsic, the  allegations  of  the  indictment  not  being  denied,  it  is 
necessary  that  such  defense  be  sustained  by  a  preponderance 
of  proof.  Defenses  of  this  character  are  licenses,  authority 
from  the  state,  former  conviction,  former  acquittal,  once  in 
jeopardy,  compulsion  of  any  kind,  and,  in  general,  defenses 
which  do  not  traverse  the  indictment,  but  are  in  avoidance  of 
the  allegations  thereof. 

The  extent  to  which  the  proof  must  go  in  making  out  an 
independent  defense  has  been  the  subject  of  much  discussion, 
some  authorities  holding  that  it  is  sufficient  in  any  case  to 
create  a  reasonable  doubt  of  guilt,  while  others  favor  the  doc- 
trine that  the  defense  must  be  made  out  to  the  satisfaction  of 
the  jury.  The  rule  laid  down  in  Wharton's  Criminal  Evidence 
(section  331)  is  that  when  the  case  of  the  prosecution  is  ad- 
mitted, and  the  defense  is  one  exclusively  of  avoidance,  then 
this  defense  must  be  made  out  by  the  defendant  by  a  prepon- 
derance of  i)roof;  to  which  he  cites  many  authorities.  lie 
applies  this  rule  to  all  facts  set  up  by  the  defendant  which  do 
not  traverse  any  averment  of  the  indictment.  In  illustration 
of  the  rule  he  says : 

"  When  the  defendant  sets  up  that  he  acted  under  necessity, 
e.  g.,  under  command  of  a  superior  officer  in  the  time  of  war, 
or  under  compulsion  of  any  kind,  the  burden  is  on  him  in  such 
cases  to  prove  the  defense  he  sets  up,  and  he  must  establish  this 
by  a  preponderance  of  proof,  it  being  an  extrinsic  defense." 
Id.,  §  335.  See,  also.  State  v.  Morphy,  33  Iowa,  278 ;  Com.  v. 
Boyer,  7  Allen,  306. 

We  are  of  opinion  that  the  rule  sanctioned  by  these  authori- 
ties is  well  supported,  and  states  the  correct  doctrine  as  to 
independent  defenses. 

The  rule  relating  to  the  res  gestm,  which  we  have  been  con- 
sidering, applies  to  all  defenses  which  traverse  the  averments 
of  the  indictment  and  go  to  the  essence  of  the  guilt  charged 
against  the  accused.  Within  this  class  may  be  mentioned  self- 
defense,  provocation,  heat  of  blood,  and,  generally,  all  matters 
growing  out  of  the  res  gestm  which  go  to  justify,  extenuate  or 


-j.n 


424 


AMERICAN  CRIMINAL  REPORTS. 


excuse  the  crime  charged,  including  the  defense  of  alihi.  Some 
authorities  hold  an  alibi  to  be  an  independent  defense,  not 
coming  within  the  rule  mentioned,  but  the  weight  of  authority 
is  against  this  view.  The  later  authorities  hold  it  to  be  an 
essential  averment  of  the  indictment  that  the  accused  was 
present  and  committed  or  partici)»ate(l  in  the  commission  of 
the  otfense;  hence  this  averment  must  be  established  by  the 
prosecution  beyond  a  reasonable  doubt,  and  if  the  proof  leaves 
it  doubtful  in  the  minds  of  the  jury  whether  the  defenchint 
was  present  at  or  absent  from  the  ])laoe  at  the  time  the  crime 
was  committed,  he  must  be  acquitted.  Turner  v.  Com.,  8G  Pa. 
St.,  73;  Howard  v.  State,  50  Ind.,  190;  Pollard  v.  State,  53 
Miss.,  416;  Whart.  Crim.  Ev.,  §  333. 

In  respect  to  the  defense  of  insanity,  so  mucli  conflict  of 
authority  exists  that  we  will  exi)ress  no  opinion  as  to  what 
class  of  defenses  it  belongs.  In  the  case  now  being  considered 
no  independent  defense  was  set  up.  The  defendant  relied 
wholly  upon  facts  arising  out  of  the  res  (jcsUv,  traversing  the 
averments  of  the  indictment,  in  which  case  the  rule  obtains 
that  if  the  jury  entertain  a  reasonable  doubt  as  to  the  exist- 
ence of  any  essential  ingredient  necessary  to  constitute  an 
offense  charged  or  included  in  the  indictment,  as  to  that  de- 
fense the  defendant  is  entitled  to  an  acquittjil.  The  instruc- 
tions given  were  in  accordance  with  the  rule  of  law  in  such 
cases. 

"We  have  carefully  examined  all  the  errors  assigned  and  not 
abandoned  in  the  submission  of  the  case  as  advanced  upon  the 
docket,  and  are  of  opinion  that  the  defendant  was  not  preju- 
diced by  the  matters  complained  of  therein.  The  instructions 
given  by  the  court  were  favorable,  rather  than  otherwise,  to 
the  defendant,  especially  in  respect  to  the  defenses  by  him  re- 
lied upon.  The  jury  Avere  sufficiently  advised  as  to  the  maxims 
of  law  concerning  the  burden  of  proof,  reasonable  doubt,  and 
the  presumption  of  innocence.  It  would  seem,  also,  from  the 
cliaracter  of  the  verdict  returned,  in  view  of  the  adverse  nature 
of  the  testimony  produced,  considered  as  a  whole,  that  the  jury 
adopted  that  humane  i)rinciple  of  the  law,  applicable  in  many 
cases,  that  if  it  is  doubtful  ■  'lether  the  prisoner  be  guilty  of  a 
greater  or  less  offense,  he  is  only  to  be  convicted  of  the  latter. 

Perceiving  no  error  in  the  record,  judgment  will  be  affirmed- 


PAXTON  V.  THE  PEOPLE. 


425 


i.    Some 
3nso.  not 
Luthority 
to  be  an 
ised  was 
iission  of 
»(l  by  the 
lof  leaves 
lefendant 
ho  crime 
n.,  8G  Pa. 
State,  53 

onflict  of 
5  to  what 
onsiclered 
mt   relied 
jrsing  the 
le  obtains 
the  exist- 
stitute  an 
)  that  de- 
le instnic- 
w  in  such 

id  and  not 
i  upon  the 
not  preju- 
istructions 
lerwise,  to 
3y  him  re- 
le  maxims 
doubt,  and 
),  from  the 
jrse  nature 
at  the  jury 
e  in  many 
guilty  of  a 
the  latter, 
affirmed- 


Panton  v.  The  Peoplb. 

(114  111.,  505.) 

Murder  :  Self-defense  —  Instrtictiom. 

1,  The  belief  necessary  to  justify  one  in  taking  life  of  assail- 

ant.—  If  a  person  assaulted  in  such  a  manner  and  under  such  circum- 
stances as  to  induce  in  hitn  a  reasonable  and  well-grounded  belief  that 
he  is  actually  in  dan(?er  of  losing  his  life  or  suffering  great  bodily  harm, 
acts  under  sucli  belief,  he  will  be  justified  in  defending  himself, 
whether  the  danger  is  real  or  only  apparent. 

2.  iNSTKLcmoN  directing  the  juuy,  etc.—  An  instruction  that  if  the  jury 

shall  believe,  from  the  evidence,  certain  facts,  they  should  find  the  de- 
fendant guilty  of  murder,  is  erroneous.  It  should  direct  no  more  than 
to  find  him  guilty. 

8.  "Fausus  in  UNO,  KALstrt  IN  oMNiHus,"  INSTRUCTION  ON.—  A  clause  In  an 
instruction,  on  the  trial  of  a  party  upon  a  cliarge  of  murder,  who  had 
testified  in  Iiis  own  iM'half,  after  reciting  certain  facts,  was  to  this 
effect:  "  And  if,  from  all  sucli  facts  and  circumstances  in  evidence,  the 
jury  believe  that  he  (the  defendant)  has  testified  falsely  upon  any  ma- 
terial point  in  issue  in  the  ca.se,  then  they  have  the  right  to  entirely 
disregard  his  evidence,  except  so  far  as  it  may  be  corroborated  by  other 
credible  proofs  or  circumstances  in  evidence."  The  instruction  was 
held  erroneous,  in  omitting  the  essential  element  that  the  witness  had 
wilfully  and  knowingly  sworn  falselj-. 

4.  Error  without  prejudice.— An  instruction  given  on  the  trial  of  a 
person  upon  the  charge  of  murder,  upon  the  law  of  self-defense,  against 
the  defendant,  though  abstractly  erroneous  may  not  afford  a  ground 
for  a  reversal  of  a  judgment  of  conviction,  where  no  case  of  self- 
defense  is  shown  by  the  evidence. 

Writ  of  error  to  the  Circuit  Court  of  Boone  County,  the  Hon. 
C.  W.  Upton,  judge,  presiding. 

Mr.  Frank  Crosby,  Mr.  Charles  E.  Fuller  and  Mr.  John  A. 
Russel,  for  the  plaintiff  in  error. 

Mr.  A.  J.  Hopkins,  Mr.  JV.  J.  Aid  rich,  Mr.  F.  IT.  Thatcher 
and  3fr.  T.  E.  Ryan,  for  the  people. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court: 

The  judgment  in  this  case  must  be  reversed  for  the  giving  of 

three  erroneous  instructions  on  behalf  of  the  people,  as  follows : 

"The  court  instructs  the  jury  that  when  a  person  charged 

with  murder,  and  not  affected  with  insanity  as  explained  to 

you,  sets  up  as  a  justification  or  defense  that  he  killed  such 


I     \ 


42r. 


AMERICAN  CRIMINAL  REPORTS. 


'if, 


person  in  self -defense,  to  make  such  plea  of  self-defense  avail- 
ing it  must  appear  that  the  danger  was  so  urgent  and  pressing 
that  in  order  to  save  his  own  life  or  to  prevent  his  receiving 
great  bodily  harm,  the  killing  of  the  other  was  absolutely 
necessary ;  and  it  must  a])pear,  also,  that  the  j)orson  killed  was 
the  assailant,  or  that  the  slayer  had  really  and  in  good  faith 
endeavored  to  decline  any  further  struggle  before  the  mortal 
blow  was  given. 

"  The  court  instructs  the  jury  that  it  is  not  every  degree  or 
kind  of  insanity  that  will  excuse  the  commission  of  a  criminal 
act,  and  in  this  case,  if  you  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  tho  defendant  committed  the  homi- 
cide charged,  and  at  tho  time  of  committing  the  same  that  he 
was  able  to  distinguish  between  right  and  wrong,  and  know 
that  the  act  committed  was  wrong  and  in  violation  of  law,  and 
that  he  was  liable  to  be  punished  therefor,  and  that  he  had  the 
power  to  abstain  therefrom,  then,  no  matter  what  delusion  he 
may  have  had,  or  what  tendency  to  insanity  from  hereditary 
causes,  such  insanity  w^ould  not  constitute  a  legal  defense  in 
this  case,  and  you  should  find  him  guilty  of  murder. 

"The  court  instructs  the  jury  that  by  a  statute  in  this  state 
the  prisoner  is  permitted  to  testify  in  his  own  behalf,  but  by 
such  permission,  under  tho  statute,  the  jury  are  not  bound  t<> 
accept  of  the  prisoner's  statements  upon  the  witness  si  md  v 
to  the  truth.    They  have  the  right,  in  determining  I  loli, 

if  any,  credence  they  will  give  to  his  statements,  t(  vo  into 
consideration  the  facts  and  circumstances  in  evident .  in  thi 
case,  the  manner  and  conduct  of  the  prisoner  while  on  the  wi 
ness  stand,  his  interest  in  the  result  of  the  suit;  and  if,  from 
all  such  facts  and  circumstances  in  evidence,  the  jury  believe 
that  he  has  testified  falsely  upon  any  material  point  in  issue  in 
this  case,  then  they  have  the  right  to  entirely  disregard  his  evi- 
dence, except  so  far  as  it  may  be  corroborated  by  other  credi- 
ble proofs  or  circumstances  in  evidence  in  this  case." 

In  Roach  et  al.  v.  The  People,  77  111.,  26,  a  like  instruction  as 
the  first  was  held  erroneous,  in  that  it  would  convey  to  the 
minds  of  the  jury  the  idea  that  the  defendants  could  not  sustain 
their  alleged  justification  of  self-defense  unless  their  danger 
was  not  only  apparently  imminent,  but  was  actual  and  posi 
tive.  This  court  has  repeatedly  held,  that  if  the  defendant  wiis 


"!f.-. 


PANTON  V.  THE  PEOPLE. 


427 


se  avail- 
pressing 
eceiving 
)solutely 
ilied  was 
lod  faith 
e  mortal 

legroe  or 
,  criminal 
3,  beyond 
,he  honii- 
le  that  he 
md  know 
I  law,  and 
16  had  the 
elusion  he 
lereditary 
defense  in 

this  state 
ilf,  but  by 
,  bound  tn 
}  st  ind  1^ 
.oil, 
vo  into 
lu .    in  th' 
on  tlie  wi 
1(1  if,  from 
iry  believe 
in  issue  in 
ard  liis  evi- 
ther  credi- 

truction  as 
voy  to  the 
not  sustain 
leir  danger 
1  and  posi 
endant  was 


assaulted  by  the  deceased  in  such  a  manner  as  to  induce  in  him 
a  reasonable  and  well  grounded  belief  that  he  was  actually  in 
danger  of  losing  his  life  or  suffering  great  bodily  harm,  when 
acting  under  such  reasonable  belief  he  was  justified  in  defend- 
ing himself,  whether  the  danger  was  real  or  only  apparent. 
Camj)hcU  v.  The  People,  10  111.,  17;  Schnier  r.  The  People,  23 
id.,  28;  Davhon  v.  The  People,  90  id.,  221. 

The  last  clause  of  the  second  above  instruction  was  wrong 
in  saying,  "  and  you  should  find  him  guilty  of  murder."  Under 
an  indictment  for  murder  a  defendant  may  be  foond  guilty  of 
manslaughter,  and  the  jury,  here,  should  have  been  left  free  to 
find  in  that  res|)oct,  without  being  directed  by  the  court  how 
they  should  find.  The  court  shouhl  have  sjiid  no  more  in  such 
respect  in  the  instruction  than  that  the  jury  should  find  the 
defendant  guilty. 

The  last  clause  of  the  third  above  instruction,  "  and  if,  from 
all  such  facts  and  circumstances  in  evidence,  the  jury  believe 
that  he  has  testified  falsely  u])on  any  material  point  in  issue  in 
this  case,  then  tliey  have  the  right  to  entirely  disregard  his 
evidence,  except  so  far  as  it  may  be  corroborated  by  other 
credible  proofs  or  circumstances  in  evidence  in  this  case,"  was 
erroneous,  in  omitting  the  essential  element  that  the  witness 
had  wilfully  or  knowingly  sworn  falsely.  Brennan  v.  The 
People,  15  ill.,  512;  Cifi/  of  Chicago  v.  Smith,  48  id.,  107;  l^ol- 
lard  V.  The  People,  (59  id.,  148. 

Of  the  first  instruction,  although  abstractly  erroneous,  it 
might  be  said  that  it  did  the  defendant  no  harm,  and  was  not 
ground  for  reversal  because  of  there  being  no  case  of  self- 
defer  ^e  presented  by  the  evidence.  Leach  v.  The  Peopile,  53 
Dl,  oi8;  Wilton  v.  The  People,  94  id.,  327;  Ritsman  v.  The 
People,  110  id.,  362.  But  the  two  other  instructions,  especially 
the  last,  can  hardly  be  passed  over  as  harmless,  as  not  calcu- 
late'1  to  prejudice,  and  as  not  actually  prejudicing  the  de- 
fenucint. 

The  judgment  is  reversed  and  the  cause  remanded. 

Judgment  reversed. 

Note. —  The  doctrine  of  self-defense. —  In  the  case  of  Commonwealth  v. 
Self  ridge,  reported  ii\  Wliarton  on  Homicide,  Parlier,  J.,  charging  the  trial 
jury,  laid  down  the  dtictrine  of  self-defonse  as  follows: 

"First.    A  nmn  who,  in  the  lawful  pursuit  of  his  business,  is  attacked  by 


ii 


42S 


AMERICAN  CRIMINAL  REPORTS. 


another,  under  circumstances  which  denote  an  intention  to  take  away  liis 
life  or  do  him  some  enormous  bodily  harm,  may  lawfully  kill  the  assailant, 
provided  he  use  all  the  means  in  his  power,  otherwise,  to  save  his  own  life 
or  prevent  the  intended  harm  —  such  as  retreating  as  far  as  he  can,  or  dis- 
abling his  adversary,  without  killing  him,  if  it  be  in  his  power. 

"Secondly.  When  the  attack  upon  him  is  so  sudden,  fierce  and  violent 
that  a  retreat  would  not  diminish  but  increase  his  danger,  he  may  instantly 
kill  his  adversary  without  retreating  at  all. 

"Thirdly.  When,  from  the  nature  of  the  attack,  there  is  reasoiiable 
ground  to  beUeve  that  there  is  a  design  to  destroy  his  life  or  commit  any 
felony  upon  his  person,  the  killing  of  the  assailant  will  be  excusable  homi- 
cide, although  it  should  afterward  appear  that  no  felony  was  intended. 

"  Of  these  three  propositions,  the  last  is  the  only  one  whicli  will  be  con- 
tested anywhere;  and  this  will  not  be  doidited  bj'  any  one  who  is  conversant 
with  the  principles  of  the  criminal  law.  Indeed,  if  this  last  jiroposition  be 
not  true,  the  preceding  ones,  however  true  and  universally  admitted,  would, 
in  most  cases,  be  entirely  inefficacious.  And  when  it  is  considered  that  the 
jury  who  try  the  cause  are  to  decide  upon  the  grounds  of  appreiiension,  no 
danger  can  flow  from  the  example.  To  illustrate  this  principle  take  tlie 
following  case:  A.,  in  the  peaceable  pursuit  of  his  alfairs,  sees  B.  rushing 
rapidlj-  towards  him,  with  an  outstrotdied  arm  and  a  pistol  in  his  hand,  and 
using  violent  menaces  against  his  life  as  he  advances.  Having  approacliod 
near  enough,  in  the  same  attitude,  A.,  who  has  a  club  in  his  hand,  striktii 
B.  over  the  head  before  or  at  the  instant  the  pistol  is  discharged,  and  of  tlic 
wound  B.  dies.  It  turns  out  that  the  pistol  was  loaded  with  poivder  only, 
and  that  the  real  design  of  B.  was  oidy  to  terrify  A.  Will  any  reasonaMc 
man  say  that  A.  is  more  criminal  than  he  would  have  been  if  there  had  bcon 
a  bullet  in  the  pistol?  Those  who  hold  such  doctrine  retjuire  that  a  man  so 
attacked  must,  before  he  strike  tlie  assailant,  stop  and  ascertain  how  tlie 
pistol  is  loaded  —  a  doctrine  which  would  entirely  take  away  the  essential 
right  of  self-ilefense.  And  when  it  is  considered  that  tlie  jury  who  try  tlic 
cause,  and  not  the  party  killing,  are  to  judge  of  the  rciusonable  grounds  nf 
his  aiiprehension,  no  d.anger  can  be  supposed  to  flow  from  this  principle," 

Commenting  further  on  the  principle  thirdly  above  laid  down,  the  learned 
judge  says: 

"  But  whether  the  firing  of  the  jjistol  was  before  or  after  a  blow  struck 
by  the  deceaseil,  there  is  another  point  of  more  importance  for  you  to  set- 
tle, and  about  whit-h  you  nmst  make  up  your  minds  from  all  the  circum- 
stances proved  in  the  case:  such  as  the  rapidity  and  violence  of  the  attack, 
the  nature  of  tlie  weapon  with  which  it  wiis  made,  the  place  where  the  catas- 
trophe hajipened,  the  musculiu*  debility  or  vigor  of  the  defendant,  and  his 
liower  to  resist  or  fly.  The  point  I  mean  is,  whether  he  could  probably  have 
saved  himself  from  death  or  enormous  bodily  harm  by  retreating  to  the 
wall  or  throwing  himself  into  the  arms  of  friends  who  would  protect  him. 
This  is  the  real  stress  of  the  case.  If  you  believe,  under  all  the  circum- 
stances, that  the  defendant  could  have  escaiK'd  his  adversary's  vengeance 
at  the  time  of  the  attack,  without  killing  him,  the  defense  set  up  has  failed, 
and  the  defendant  must  be  convicted.  If  you  believe  his  only  resort  for 
safety  was  to  take  the  life  of  his  antagonist,  he  must  be  acquitted,  unless 


PANTON  V.  THE  PEOPLE. 


429 


away  liis 

assailant, 

8  own  life 

an,  or  dis- 

nd  violent 
f  instantly 

reasonable 
immit  any 
aV)l«'  honii- 
GHcled. 
■ill  be  con- 
convcrsjint 
position  be 
:e(l,  would, 
ed  that  the 
tension,  no 

0  take  the 
B.  rushing 
3  hand, and 
approafhod 
intl,  striicos 
,  and  ot  till' 
jirdcr  only, 

reasonatilc 
re  had  been 
tit  a  man  so 
in  how  the 
le  essential 
kvho  try  the 

grounds  of 
rinciple." 
tlio  learnt'il 

iIdw  struck 
you  to  set- 
the  circuni- 
the  attiuU, 
e  the  catas- 
int,  and  hid 
abably  have 
iting  to  the 
rotiH't  him. 
the  circuni- 

1  vengeance 
J  has  failed, 
y  resort  for 
tied,  uidess 


his  conduct  has  been  such  prior  to  the  attack  upon  him  aa  will  deprive  him 
of  the  privilege  of  setting  up  a  defense  of  this  nature.  It  has,  however, 
been  suggested  by  the  defendant's  counsel,  that,  even  if  his  life  had  not  been 
in  danger  or  great  bodily  barm,  bat  only  disgrace  was  intended  by  the  de- 
cea.sed,  there  are  certain  principles  of  honor  and  natural  rigiit  by  which  the 
killing  may  be  justified.  These  are  principles  which  you,  as  jurors,  and  I, 
as  a  judge,  cannot  recognize.  The  laws  which  we  are  sworn  to  administer 
are  not  founded  upon  them.  Let  those  who  choose  such  principles  for  their 
guidivnce  erect  a  court  for  the  trial  of  i)oints  and  principles  of  honor ;  but 
let  the  courts  of  law  adhere  to  those  principles  which  are  laid  down  in  the 
books,  and  whose  wisdom  ages  of  ex|(erience  have  sanctioned.  I  therefore 
declare  it  to  you  as  the  law  of  the  land,  that,  unless  the  defendant  has  sat- 
isfiirtorily  proved  to  you  that  no  means  of  saving  his  life  or  his  person  from 
the  great  bodily  harm  which  was  ajtparently  intended  by  the  deceased 
again.st  him,  except  killing  his  adversary,  were  in  his  power,  he  has  been 
guilty  of  manslaughter,  notwithstanding  you  may  Ix^lieve  with  the  grand 
jury  who  found  the  bill  that  the  ciise  <loes  not  present  the  least  evidence  of 
malice  or  (>remeditated  design  in  the  defendant  to  kill  the  deceased  or  any 
other  person." 

In  Uniteif  States  v.  Wiltbergcr,  3  Wash.  C.  C,  mn,  Washington,  J.,  in 
charging  ilic  jury  with  reference  to  the  plea  of  self-defense,  stated: 

"  The  present  case  is  one  which  the  defendant's  counsel  have  contended 
is  justified  by  law  —  justified,  they  saj-,  upon  the  ground  of  self-defense. 

"As  to  this,  the  law  is  that  a  man  may  opjiose  force  to  force,  in  defense 
of  his  person,  his  family  or  property,  against  one  who  manifestlj' endeavors, 
by  surprise  or  violence,  to  commit  a  felonj-,  as  minder,  robbery,  or  the  like. 

"  In  this  definition  of  justifiable  homicide,  the  following  particulars  are 
to  be  attended  to:  The  intent  must  be  to  commit  n  felon y.  If  it  be  only  to 
commit  a  trespass,  as  to  beat  the  l)arty,  it  will  not, jiiKt if y  the  killing  of  the 
aggressor.  No  words,  no  gestures,  however  insulting  and  iiTitating,  not 
even  an  assault,  will  afford  such  justification,  although  it  may  be  sufiicient 
to  reduce  the  offense  from  nuirder  to  manslaughter.  In  the  next  plixce,  the 
intent  to  commit  a  felony  nmst  be  apparent,  which  will  be  sufficient,  al- 
though it  should  afterwards  turn  out  that  the  real  intention  was  less  crim- 
inal, or  wivs  even  innocent.  This  apparent  intent  is  to  be  collected  from  the 
attending  circumstances,  such  ius  the  manner  of  the  assault,  the  natme  of 
tlie  weapons  used,  and  the  like;  and  lastly,  to  produce  this  justificati<m,  it 
must  appear  that  the  danger  was  imminent,  and  the  species  of  resistance 
used  necessary  to  avert  it." 

In  The  State  r.  Crairfonl,  66  Iowa,  818,  Rothrock,  J.,  says:  "  (\ninsel  for 
defendant  make  objection  to  the  following  clause  in  one  of  the  instructi<ins 
given  by  the  court  to  the  jury,  to  wit:  'One  may  lawfully  do  violeni-e  to 
the  person  of  another  when  it  is  absolutely  necessary,  or  reasonably  seems 
to  1k3  aiisolutely  necessary  to  do  so,  for  the  preservation  t)f  his  own  life  or 
tlio  protection  of  his  own  person  from  great  injury.'  The  use  of  the 
word  'absolutely'  in  connection  with  the  apprehended  danger  is  objected 
to  as  going  beyond  the  rule  which  excuses  homicide  when  the  slayer,  with- 
out fault,  reasonably  apprehends  death  or  great  bodily  harm.  We  do  not 
think  the  instruction  is  objectionable  in  tins  respect.     Its  purport  merely  is 


TT 


430 


AMERICAN  CRIMINAL  REPORTS. 


that  the  danger  must  appear  to  the  Jefendant  to  be  actual,  and  absolutelj 
require  him  to  defend  himself." 

In  r/ie  State  v.  Thompson,  9  Iowa,  188,  the  defendant  asked  the  court  to 
charge  the  jury  that  if  the  defendant  was  a  cripple,  and  so  disablnd  u  -  to 
be  unable  to  defend  himself  by  any  other  methotl  in  his  immediate  power 
than  by  resorting  to  a  deadly  weapon,  he  would  be  excusable  in  using  such 
weapon  to  protect  his  person  from  a  violent  battery  and  beating. 

This  instruction  the  court  refused  to  give,  but  charged  the  jury  as  follows: 

"  1.  That  although  the  deceased  may  have  menaced  cand  threatened  to 
assault  the  prisoner  with  his  lists,  the  prisoner  was  not  justified  in  repelling 
Buch  an  assault  by  resorting  to  a  concealed  deadly  weaiwn,  and  using  it  in 
such  a  manner  as  to  pro<luce  death. 

"  2.  That  while  a  jwrson  is  not  bound  to  retreat  from  a  place  where  he 

may  rightfully  remain,  and  may  lawfully  repel  a  threatened  a.ssault,  and  to 

that  end  may  use  force  enough  to  repel  the  Jissailant,  yet  ho  has  no  right  to 

'  repel  a  thi-eatened  assault  with  naked  fists  by  the  use  of  a  deadly  weapon 

in  a  deadly  manner,  and  which  he  has  concealed  up  to  the  time  of  its  use. 

"  8.  Before  a  party  is  justified  in  resorting  to  a  concealed  deadly  weapon, 
and  using  it  in  a  deadly  manner,  it  nmst  appear  that  he  was  in  immiuent 
peril  of  death  or  great  bodily  harm,  or  that  a  reaisonable  man  under  like 
circumstances  would  have  reasonable  grounds  to  believe  that  he  was  in  peril 
of  losing  his  life  or  sustaining  great  bodily  harm,  and  that  he  could  not 
otherwise  have  saved  his  life  or  person  from  gi-eat  btnlily  harm." 

Stockton,  J.,  delivering  the  opinion  of  the  sui)reme  court,  says: 

"It  appeared  in  evidence  tluit  the  deceased  had  assaulted  the  defendant, 
and  pursued  him  with  a  heavy  board,  sufficient  to  do  great  bodily  injury ; 
that  he  threw  down  the  board  iuid  followed  defendant  in  a  threatening 
manner,  but  having  no  visible  weaixm;  and  that  while  defendant  w.is  re- 
treating and  the  deceased  pursuing,  and  had  arrived  within  a  few  feet  of 
him,  the  defendant  turned  and  shot  the  deceased.  The  evidence  further 
showed  that  some  ten  days  or  two  weeks  before  tlie  killing  the  defendant 
had  been  severely  injured  by  a  fall  from  a  horse,  and  some  of  his  ribs 
broken,  and  was  a  cripi)le ;  and  that  deceiused  was  a  quarrelsome  and  vio- 
lent man,  and  would  resort  to  deadly  weapons  or  anything  in  his  power, 
when  engaged  in  conflict.     .     .     . 

"  We  think  there  waa  no  error  in  the  refusal  of  the  court  to  give  the  instruc- 
tion asked.  A  paity  may  repel  force  by  force  in  the  defense  of  his  person, 
habitation  or  property,  against  one  who  manifestly  intends  or  endeavors,  by 
violence  or  surprise,  to  commit  a  known  felony  upon  tuther ;  and  if  a  conflict 
ensue  in  such  case,  and  he  takes  life,  the  killing  is  justifiable.  To  make  a 
homicide  excusable  on  the  ground  of  self-defense,  the  danger  must  be  shown 
to  be  actual  and  urgent.  No  contingent  necessity  will  avail.  It  must  be 
proved  that  the  a.ssault  was  imminently  perilous ;  and  without  there  be  a 
plain  manifestation  of  a  felonious  intent,  no  assault  will  justify  killing  the 
ajBsailant " 

In  Daviso.i  v.  The  People,  90  Dl.,  221  (229),  Mr.  Justice  Walker,  com- 
menting upon  the  facts  in  evidence  and  the  instructions  given  in  the  case, 
says: 

"It  is  urged  that  the  third  instruction  given  for  the  people  is  erroneous. 


PANTON  V.  THE  PEOPLE. 


131 


absolutely 

le  court  to 
ihlod  L.-  to 
liate  power 
using  iducb 

as  follows: 
reatenod  to 
in  repelling 

using  it  in 

56  where  he 
ault,  and  to 
3  no  right  to 
idly  weapon 
c  of  its  use. 
dly  weapon, 
n  imniiuent 
1  under  like 
!  was  in  peril 
he  could  not 

ys: 

li  defendant, 
odily  injury; 
threatening 
dant  was  re- 
i  few  feet  of 
ence  further 
le  defendant 
L'  of  his  ribs 
ome  and  vio- 
n  his  power, 

'O  the  instruc- 
:)f  his  person, 
mdeavors,  by 
id  if  a  conflict 

To  make  a 
uist  be  shown 

It  must  bo 
)ut  thero  be  a 
fy  killing  the 

Walker,  coui- 
L'n  in  the  case, 

e  is  erroneous. 


It  informs  the  jury  that  the  accused  would  not  be  justified  in  killing  de- 
ceased to  prevent  a  trespass  to  his  real  estate,  unless  it  was  upon  his  dwelling- 
house.  We  apprehend  that  no  well  considered  case  has  gone  the  length  of 
holding  that  a  person  may  kill  another  to  prevent  a  mere  trespass  to  his 
property.  A  man's  house  is  his  castle,  and  he  may  defend  it  even  to  the 
taking  of  life,  if  necessary  or  apparently  necessary  to  prevent  persons  from 
forcibly  entering  it  against  his  will,  and  when  warned  not  to  enter  and  to 
desist  from  the  use  of  force.  The  law  affords  ample  redress  for  trespasses 
committed  on  a  man's  land,  but  does  not  sanction  the  taking  of  life  to  pre- 
vent it.  The  owner  may,  no  doubt,  oppose  force  with  force  to  protect  his 
j)roperty  from  injury  or  destruction,  but  not  to  the  extent  of  taking  life,  or 
in  excess  of  the  necessity  of  the  case.  When  he  carries  resistance  to  excess 
and  uses  more  force  than  is  reasonably  necessary,  he  becomes  a  wrong-doer. 
This  instruction  was  correct.  We  are  aware  of  no  well  considered  case  that 
hiis  gone  further  than  this  instruction  announces  the  rule. 

"  We  i)erceive  no  error  in  the  fifth  of  the  people's  instructions.  It  informs 
the  jury  tliat,  to  justify  killing  in  self-defense,  the  '  danger  must  be  so  urgent 
and  pressing  that,  in  order  to  save  his  own  life  or  prevent  his  receiving  great 
bodily  harm,  the  killing  of  the  other  was  .absolutely  necessary  or  apparently 
necessary.'  In  the  ca.se  of  Camphdl  v.  The  People,  16111.,  17,  it  was  held 
that  the  danger  need  not  bi?  real,  but  apparent,  and  so  urgent  iis  to  excite  a 
reasonable  and  well  groundotl  fear  of  losing  his  life  or  suffering  great  bodily 
harm,  to  justify  the  accused  in  defending  himself  by  taking  the  life  of  his 
assailant.  This  instruction  clearly  announces  the  same  rule.  W^e  fail  to  see 
that  it  could  have  been  misunderstood  by  the  jury. 

"It  is  urged  that  the  sixth  of  the  people's  instructions  is  also  vicious.  It 
is  claimed  it  deprives  the  accused  of  the  right  of  judging  from  his  stand- 
point whether  or  not  the  danger  to  him  was  so  imminent  as  to  justify  him 
in  using  the  pistol  in  defense.  We  ai-e  not  able  to  see  tliat  it  is  subject  to 
this  criticism.  He  was  bound  to  decline  the  combat  in  good  faith,  and  was 
iKiuntl  to  use  all  means  that  would  be  adopted  by  reasonable  men  to  procure 
iheir  safety  under  similar  circumstances.  He  had  no  right  to  take  the  life 
of  deceased,  unless  it  was  ai)parently  necessary,  and  t'lf^  necessity,  real  or 
apparent,  so  i)res8ing  as  to  exclude  all  other  reasonable  means  of  safety,  be- 
fore 1\8  could  be  justified  in  slaying  liis  assailant.  And  this  is  all  this  instruc- 
tion recjuired." 

In  Jackmn  v.  The  State,  77  Ala.,  18,  Clopton,  J.,  says: 

"  The  essential  elements  of  self-defense  maj'  be  regarded  as  beyond  doubt 
or  controversy.  These  are:  1.  The  defendant  nnist  be  free  from  fs.ult; 
that  is,  he  nmst  not  say  or  do  anything  for  the  purpose  of  provoking  a  diffi- 
culty, nor  must  he  be  disregardful  of  the  consequence  in  this  respect.  2. 
There  must  be  a  present  impending  peril  to  life  or  of  great  bodily  harm,  either 
real,  or  so  apparent  as  to  create  the  bona  fide  belief  of  an  existing  necessity ; 
and  3.  There  must  be  no  convenient  or  reasonable  mode  of  escape  by  retreat 
or  declining  the  c<mibat." 

The  rule  is  to  submit  to  the  jury,  as  a  question  of  fact,  the  inquiry  as  to 
wliether  the  party  assailed  could  have  conveniently  and  safely  retreated 


TP^ 


^§^ 


432 


AMERICAN  CRIMINAL  REPORTS. 


-1% 


without  apparently  putting  himself  at  a  probable  disadvantage.  De  Arman 
V.  The  State,  77  Ala.,  10. 

In  The  State  v.  Scott,  4  Iredell  (N.  C),  409,  Ruffin,  C.  .!.,  said: 

"  The  belief  that  a  person  de.signs  to  kill  me  will  not  prevent  my  killing 
him  from  beinf?  murder,  unless  he  is  making  scjiiie  attem|)t  to  execute  his 
design,  or,  at  least,  is  in  an  ajipan-nt  situation  to  do  so,  and  thereby  induces 
me  reasonably  to  think  that  he  intends  to  do  it  immediately." 

In  Isaacs  i\  The  State,  25  Texas,  174,  the  trial  court,  in  charging  the  jury, 
said: 

"If  the  party  has  time  and  opiwrtunity,  with  safety  to  himself,  to  re- 
sort to  other  means  to  protect  himself,  then  he  is  not  justifiable  in  killing. 
It  is  the  necessity  of  the  case,  and  that  only,  which  justifies  the  killing. 
On  that  necessity  the  right  to  kill  rests,  and  when  the  necessity  ceases  the 
right  no  longer  exists.  This  limitation  which  the  law  puts  on  the  right  of 
self-defense  is  foimded  on  the  same  law  of  nature  and  reason  which  givea 
the  right  of  defense;  and  it  does  not  restrain  it,  but  proto(;ts  it  and  pievouts 
its  abuse  by  those  who  would,  under  its  color  and  the  pi'etense  of  defense, 
seek  to  gratify  revenge  or  an  occasion  to  kill." 

"  If,  then,  under  these  rules,  you  believe  the  accused  acted  only  in  his  nec- 
essary self-defense,  you  will  find  him  '  not  guilty ; '  but  if  you  believe 
otherwise  from  the  facts,  that  the  accused  might  with  safety  to  himself  have 
avoided  the  conflict  and  all  danger  by  other  means  than  killing  or  retreating; 
or  that  at  the  tiiue  of  the  killing  he  was  not  in  immediate  danger  of  serious 
bodily  haim  then  about  to  be  infiict<Hl,  or  that  he  had  sought  to  contest  and 
provoke  the  attack  on  him  in  revenge  for  previcnis  difficulties  or  <iuarreis, 
then  he  was  not  justifiable,  and  you  will  iiKjuire  whether  the  killing  was 
manslaughter  or  murder," 

The  jury  found  the  defendant  guilty  of  nmrdor  in  the  second  degree  and 
assessed  his  jmnishment  at  twenty  years'  confinement  in  the  penitentiary. 
The  supreme  court  iipprovi.'d  tlie  charge  and  sustained  the  judgment. 

In  Stoffcr  V.  The  State,  15  Ohio  St.,  47,  the  plaintiff  in  error  was  indicted 
for  the  murder  of  one  Montgomery  Wcl)!),  and  ui)on  the  trial  was  found 
guilty  of  manslaughter  and  sentenced  to  the  penitentiary  for  six  years. 
After  evidence  was  introduced  by  the  state  tending  to  prove  that  the  plaint- 
iflE  made  an  assault  upon  Webb  in  the  street,  with  intent  tonunder  him  with 
a  knife,  and  that  in  the  conflict  which  ensued  Webb  wjis  killed  by  him, 
the  plaintiff  in  error  gave  evidence  tending  to  i)rove  thiit  he  desisted  from 
the  conflict,  declined  further  comb.it,  .and  retreated  rapidly  a  distance  of 
one  hundred  and  fifty  feet  and  took  refuge  in  the  house  of  a  stranger,  wheic 
he  shut  and  held  the  d(H)r;  that  Webb,  Webb's  brother  and  one  Dingmiin 
immediately  pursued,  throwing  stones  at  hiniiind  crying,  "kill  him,'"  as  he 
retreated,  and,  forcibly  opening  the  door,  they  (Mitered  the  house  and  assauilid 
him,  and  in  the  conflict  which  immediately  ensueil,  Webb  was  killed. 

Upon  this  state  of  the  evidence,  counsel  for  the  plaintifT  in  error  requested 
the  court  to  instruct  the  jury  that  the  killing  of  Wel)l)  would  Ije  excusable, 
although  the  accused  should  have  made  the  :i.ssault  u|)on  him  with  the 
malicious  intent  of  killing  him,  if  the  jury  should  find  that,  before  Webb 


PANTON  V.  THE  PEOPLE. 


433 


DeArman 


tny  killing 
xecute  his 
by  induces 

g  the  jury, 

iself ,  to  re- 
I  in  killing. 
;he  killing, 
ceases  the 
he  right  of 
vhich  givea 
11(1  prevents 
of  defense, 


y  in  his  nec- 
you  believe 
limself  have 
r  retreating; 
er  of  serious 

contest  and 
or  <iii!irrels, 

killing  wa-s 

1  (k'g-ree  and 
)enitentiary. 
nient. 
WJV5  indicted 


waa  found 
)r  !six  years. 
vt  th.'  plaint- 
derhim  witli 
lUxl  by  him. 
'sisted  fmni 

distance  <>f 
ui)J?er.  whcii' 
ne  l)ingm;\ii 

him,'"  as  lie 
vndaasaulli'd 

killed. 

ror  requested 
Mj  excusable, 
\\u\  with  the 
before  Webb 


had  received  any  injury,  the  accused  desisted  from  the  conflict  and.  in  good 
faith,  declined  further  combat,  and  retreated  to  a  place  which  ho  might  rea- 
sonably regard  as  a  place  of  security,  and  that  Webb  and  those  in  concert 
with  him  immediately  pursued  and  forcibly  entered  such  place,  and  there 
made  an  assault  upon  the  accused  in  such  manner  as  to  warrant  liim  in  be- 
lieving tliat  his  life  was  in  danger  at  the  hands  of  Webb,  and  without  delib- 
eration or  malice,  ,aud  to  save  his  own  life,  he  took  that  of  Webb. 

This  instruction  the  court  refused  to  give,  but  in  substance  charged  the 
jury  that,  under  such  circumstances,  the  accused  would  be  guilty  of  man- 
slaughter, provided  they  "should  regard  the  conduct  of  Webb  from  the 
coniineiicement  of  the  conflict  in  the  street  to  the  time  of  the  conflict  in  the 
liou.se  as  continuous." 

Rjmney,  J.,  delivering  the  opinion  of  the  court,  said: 

"  A  line  of  distinction  must  somewhere  be  drawn,  which,  leaving  the 
originator  of  a  combat  to  the  necessary  consequences  of  his  illegal  or  mali- 
cious conduct,  shall  neither  impose  upon  him  punishments  or  disabilities 
unknown  to  the  law,  nor  encourage  his  adversary  to  wreak  vengeance  upon 
him  rather  tlian  resort  to  the  legal  tribunals  for  redress ;  and  we  think,  upon 
principle  and  the  decided  weight  of  authority,  it  lies  precisely  where  we 
have  indicated.  While  he  remains  in  the  conflict,  to  whatever  extremity 
he  may  be  reduced,  he  cannot  be  excused  for  taking  the  life  of  his  antago- 
nist to  save  his  own.  In  such  ca.se,  it  may  be  rightfully  and  truthfully  said 
that  he  brought  the  necessity  upon  himself  by  his  own  criminal  conduct. 
But  wlien  he  has  succeeded  in  wholly  withdrawing  himself  from  the  contest, 
and  that  so  palpably  as  at  the  s.ame  time  to  manifest  his  own  good  faith,  and  to 
remove  any  just  ai)prchension  from  his  adversary,  he  is  again  remitted  to 
his  right  of  self-defense,  and  may  make  it  effectual  by  opposing  force  to  force, 
and,  wlien  all  other  nutans  have  failed,  may  legally  act  upon  the  instinct  of 
self-preservation  and  save  his  own  life  by  sacrificing  the  life  of  one  who  per- 
sists in  endangering  it." 

In  The  State  v.  Linney,  51  Mo.,  40,  Wagner,  J.,  in  delivering  the  opinion 
of  tlio  court,  said : 

"  Tliere  is  certainly  no  law  to  justify  the  proposition  that  a  man  may  be 
the  assailant  and  bring  on  an  attack,  and  then  claim  exemption  from  tho 
conseciuence  of  killing  his  adversary  on  the  ground  of  self-defense.  Wlulo 
a  man  may  act  safely  on  appearances,  and  is  not  bound  to  wait  until  a  blow 
is  received,  yet  he  cannot  be  the  aggressor  and  then  shield  himself  on  tho 
assumption  that  iu>  was  defending  himself." 

In  Shorter  v.  The  People,  2  N.  Y.,  193,  Bronson,  J.,  delivering  the  opinion 
of  the  court,  said : 

"  When  one  who  is  without  fault  himself  is  attacked  by  another  in  such 
a  manner,  or  under  such  circumstances,  as  to  furnish  reasonable  grounds 
for  apprehending  a  design  to  tak(!  away  his  life  or  to  do  him  some  great 
bodily  harm,  and  there  is  reasonable  ground  for  believing  the  danger  immi- 
nent that  su(;h  design  will  be  accomplished,  I  think  he  may  safely  act  upon 
appearances,  and  kill  the  assailant,  if  that  be  necessary  to  avoid  the  appre- 
hended danger ;  and  the  killing  will  bo  justifiable,  although  it  may  after- 
wards turn  out  that  tho  appearances  were  false,  and  there  was  in  fact 
neither  design  to  do  liim  serious  injury,  nor  danger  that  it  would  be  done. 
Vol.  V  — 28 


m- 


R 


434 


AMERICAN  CRIMINAL  REPORTS. 


.  H 


He  must  decide,  at  his  peril,  upon  the  force  of  the  circumstances  in  wliich 
lie  is  placed ;  for  that  is  a  matter  which  will  be  subject  to  judicial  review. 
But  he  will  not  act  at  the  peril  of  making  that  guilt,  if  appearances  prove 
false,  which  would  be  innocence  had  they  proved  true.  .  .  .  When  a 
man  is  struck  with  the  naked  hand,  and  has  no  reason  to  apprehend  a  de- 
sign to  do  him  any  great  bodily  harm,  he  must  not  return  the  blow  with  a 
dangerous  weapon.  (Is  this  so  if  a  man  is  attacked  by  a  pugilist  or  a  bully?) 
After  a  conflict  has  commenced  he  must  quit  it,  if  he  can  do  so  in  safety, 
before  he  kills  his  adversary;  and  I  hardly  need  add,  that  if  his  adversary 
try  to  escaije,  he  must  not  pursue  and  give  him  fatal  blows  with  a  deadly 
weapon." 

So  in  Logue  v.  Commomcealth,  2  Wright  (Pa.),  265,  Thompson,  J.,  quoting 
the  language  used  by  Bronson,  Justice,  in  the  case  of  Shorter  v.  The  People, 
says: 

"  I  take  the  rule  to  be  settled,  that  the  killing  of  one  who  is  an  assailant 
must  be  under  a  reasonable  ai)prehension  of  loss  of  life  or  great  bodily 
harm,  and  the  danger  must  appear  po  imntinent  at  the  moment  of  the  assault 
as  to  present  no  alternative  of  escijiing  its  consequences  but  by  resistance. 
Then  the  killing  may  be  excusable,  even  if  it  turn  out  afterwards  that  there 
was  no  actual  danger. 

"  The  law  of  self-defense  is  a  law  of  necessity,  and  that  necessity  nuist 
be  real,  or  bear  all  the  semblance  of  reality,  and  ai)pear  to  admit  of  no 
other  alternative,  Ijefore  taking  life  wiM  bo  justifi.ible  or  excusable.  Wiien- 
ever  it  is  set  up,  the  case  will  always  <  all  for  a  most  careful  and  searching 
scrutiny,  to  be  sure  that  it  rests,  where  alone  it  can  rest,  on  the  ground  of 
real  or  appai-ently  real  necessity." 

In  The  State  v.  JlaiTis,  1  Jones  (N.  C),  190,  Nash,  Ch.  J.,  in  delivering 
the  opinion  of  the  court,  said : 

"  The  first  objection  to  the  charge  is,  as  to  the  prisoner  having  reasonahle 
ground  to  believe  that  the  deceased  intended  to  take  his  life  or  rob  him. 
The  prisoner's  counsel  contended  that,  if  the  prisoner  was  mistaken  in  be- 
lieving that  the  deceased  intended  to  kill  or  rob  him,  yet,  if  he  helieird  liis 
life  was  in  danger,  or  he  was  in  danger  of  teing  rt)bbed,  and  acted  on  that 
belief,  it  would,  at  most,  have  been  manslaughter.  His  honor  laid  down 
the  law  upon  that  subject,  and  stated,  whenever  then;  is  reasonable  ground 
to  believe  there  is  a  design  to  destroy  life,  to  rob  or  commit  a  felony,  tlie 
killing  will  be  justifiable.  But  it  is  for  the  jury,  and  not  the  prisoner,  to 
judge  of  the  reasonable  ground  of  the  apprehension.  Wo  see  no  error  in 
these  directions.  It  is  the  course  which  that  humane  man  and  excellent 
judge.  Sir  Michael  Foster,  pursued  in  a  case  before  him.  A  man  was  in- 
dicted for  the  murder  of  his  wife.  He  had  in  the  morning  loaded  his  gun, 
in  the  110^)6  of  finding  some  game;  being  disapiwinted,  ho  discharged  tlie 
load,  and  put  the  gun  in  a  safe  place.  During  his  absejice,  a  servant,  with- 
out his  knowledge,  took  the  gim,  loa<led  it  and  went  after  some  game,  and, 
while  the  prisoner  was  still  absent,  returned  it  to  the  place  from  which  he 
had  taken  it,  where  the  prisoner  found  it,  in  all  appearance,  as  he  had  left 
it.  The  gun  was  carried  into  the  room  where  his  wife  was.  He  took  it  up. 
touched  the  trigger,  the  gun  went  off  and  killed  his  wife.  I  did  not  in- 
quire, says  Justice  Foster,  whether  the  iMX)r  man  had  examined  the  gun  be- 


PANTON  V.  THE  PEOPLE. 


435 


!S  in  which 
ial  review, 
nces  prove 
.    When  a 
ihend  a  de- 
low  witli  a 
or  a  bully?) 
lo  in  safety, 
3  adversary 
th  a  deadly 

,  J.,  quoting 
The  People, 

an  assailant 
RTcat  bodily 
(f  the  assault 
y  resistance, 
ds  that  there 

jcessity  nuist 
admit  of  no 
ible.  "When- 
ind  searching 
he  ground  of 

in  delivering 

ng  reasonable 
e  or  rob  hiui. 
istaken  in  be- 
le  heUi'vc<l  his 
acted  on  that 
lor  laid  down 
mable  ground 
t  a  feh)ny,  tlie 
lie  prisoner,  to 
;ee  no  error  in 

and  excellent 
^  man  wa.s  in- 
oaded  bis  gun. 
discharged  the 

servant,  with- 
nie  game,  and. 
trom  which  he 

iis  he  bad  left 

He  took  it  up. 
I  did  not  in- 

led  the  gun  be- 


fore he  carried  it  home  (where  the  accident  occurred),  but,  being  of  opinion, 
upon  the  whole  evidence,  that  he  had  reasonable  ground  to  believe  that  it 
was  not  loaded,  I  directed  the  jury  that,  if  they  icere  of  the  same  opinion, 
to  acquit  him." 

Pirvious  threats  and  eharacter  of  deceased  for  violence,  as  bearing  upon 
the  doctrine  of  self-defense. — In  Grainger  v.  The  State,  5  Yerger  (Tenn.), 
459,  Catron,  Ch.  J.,  laid  down  tlie  rule  that  if  a  man,  through  fear  or 
cowardice,  killed  another  under  the  impression  that  great  bodily  injury  was 
about  to  be  inflicted  upon  him,  the  killing  would  be  in  self-defense.  But  if 
he  thought  his  ojssailant  intended  to  commit  a  battery  upon  him,  less  vio- 
lent, to  prevent  which  he  killed  him,  it  was  manslaughter. 

In  Rippy  V.  The  State,  2  Head  (Tenn.),  217,  Caruthers,  J.,  commenting 
upon  the  doctrine  of  the  Grainger  case,  last  above  cited,  says  that  no  case 
has  been  more  perverted  and  misapplied  by  advocates  and  juries.  He 
further  adds : 

"  The  law  on  this  subject  is,  that,  to  excuse  homicide,  the  danger  of  life 
or  great  bodily  injury  must  either  be  real  or  honestly  believed  to  be  so  at 
the  time,  and  upon  sufficient  grounds.  It  must  be  apparent  and  imminent. 
Previous  threats,  or  even  acts  of  liostility,  how  violent  so  ever,  will  not,  of 
themselves,  excuse  the  slayer,  but  there  must  be  some  words  or  overt  acts  at 
the  time  clearly  indicative  of  a  present  purpose  to  do  the  injury.  Past 
threats  and  hostile  actions,  or  antecedent  circumstances,  can  only  be  looked 
to  in  connection  with  present  demonstrations  as  grounds  of  ap[)rehension. 
To  constitute  the  defense,  the  belief  or  apprehension  of  danger  must  be 
founded  on  sufficient  circumstances  to  authorize  the  opinion  that  the  deadly 
purjtose  then  exists,  and  the  fear  that  it  will  at  that  time  be  executed. 
The  character  of  the  deceased  for  violence,  as  well  as  his  animosity  to  the 
defendant,  as  indicated  by  words  and  actions  then  and  before,  are  proper 
matters  for  the  consideration  of  the  jury  on  the  question  of  reasonable 
apprehension.  Even  if  sufficient  cause  to  fear  does  exist,  but  the  deed  is 
not  i)erpetrated  under  the  apprehension  it  is  calculated  to  inspire,  or  the  fear 
i.s  feigned  or  pretended,  the  defense  will  not  be  available." 

This  character  of  evidence  is  admissible  only  when  a  case  of  self-defense 
is  shown.    Harrison  v.  Com.,  79  Va.,  374 ;  State  v.  Watson,  36  La.  Ann.,  148. 

In  Bohannon  v.  Commonwealth,  8  Bush  (Ky.),  481,  Lindsay,  J.,  after 
reviewing  the  earlier  cases  in  that  court  on  the  doctrine  of  self-defense,  and 
after  quoting  a  passage  from  East's  Pleas  of  the  Crown,  says: 

"  The  doctrine  of  this  author  (East)  seems  to  be  that  fear,  though 
grounded  upon  the  fact  that  one  lies  in  wait  to  take  a  party's  life,  or  upon 
the  murderous  threats  of  a  desperate  and  determined  enemy,  will  not,  in 
the  absence  of  actual  danger  at  the  time,  justify  the  party  so  endangered  or 
threatened  in  slaying  his  adversary.  But  that  when  this  lying  in  wait  or 
these  threats  have  been  accompanied  by  an  actual  attempt  to  kill,  and  from 
all  the  attendant  circumstances  the  party  in  danger  believes,  and  has  the 
right  to  believe,  that  he  can  escape  the  constantly  impending  danger  which 
becomes  imminent  whenever  his  foe  is  present  in  no  other  way  except  to 
kill  such  foe,  he  is  not  obliged,  when  he  may  casually  meet  him,  to  fly  for 
safety  nor  to  await  his  attack. 

"  However  this  may  be,  the  threats  of  even  a  desperate  and  lawless  man 


i 


^i 


436 


AMERICAN  CRIMINAL  REPORTS. 


do  not  and  ought  not  to  authorize  the  person  threatened  to  take  his  life; 
nor  does  any  demonstration  of  hostility  short  of  a  manifest  attempt  to  roni- 
mit  a  felony  justify  a  measure  so  extreme.  But  when  one's  life  has  l)oen 
repeatedly  threatened  by  such  an  enemy,  when  an  actual  attempt  has  been 
made  to  assassinate  him,  and  when,  after  all  this,  members  of  his  family 
have  been  informed  by  his  assailant  that  he  is  to  be  killed  on  sight,  we  hold 
that  he  may  lawfully  arm  himself  to  resist  the  threateninl  attack.  He  may 
leave  his  home  for  the  transaction  of  his  legitimate  business  or  for  any  law- 
ful and  proper  purpose;  and  if,  on  such  an  occasion,  he  casually  meets  his 
enemy,  having  reason  to  believe  him  to  be  armed  and  reiidy  to  execute  his 
murderous  intentions,  and  he  does  believe,  and  from  the  threats,  the  iicr- 
viouB  assault,  the  character  of  the  man  and  the  circumstances  atteiuliu};  tin* 
meeting,  he  has  the  right  to  believe,  that  the  presence  of  his  adversary  jjiits 
his  life  in  imminent  peril,  and  that  he  can  secure  his  personal  safety  in  no 
other  way  than  to  kill  him,  he  is  not  obliged  to  wait  until  ho  is  actually 
assailed.  He  may  not  hunt  his  enemy  and  shoot  him  down  like  a  wild 
beast,  nor  has  he  the  right  to  bring  alwut  an  unnecessary  meeting  in  order 
to  have  a  pretext  to  slay  him ;  but  neither  reason  nor  the  law  demands  that 
he  shall  give  up  his  business  and  abandon  society  to  avoid  such  meeting." 

In  The  State  v.  Barfield,  8  Iredell  (N.  C),  344,  Ruflin,  Ch.  J.  (Battl.;,  J., 
dissenting),  says: 

"  It  is  too  much  to  stake  the  life  of  one  man  uyxm  the  fears  of  another  of 
danger  from  him,  merely  upon  his  character  for  turbulence,  and  when  ho 
is  making  no  assault.  Such  would  be  the  case  liere,  if  the  evidence  had 
been  received,  for  the  prisoner's  own  witnesses  proved  that  there  was  no 
assault  on  him.  It  is  the  fact,  and  not  the  fear  of  an  assault,  that  exten- 
uates the  killing,  upon  the  supposition  that  it  instantly  iirousos  the  resent- 
ment to  an  uncontrollable  pitch.  It  is  possible,  where  the  ca.so  is  one  of 
circumstantial  evidence,  and  there  is  no  direct  pnx)f  of  the  (juarrel  and 
combat,  that  evidence  of  the  character  of  the  decea.sod  might  be  mercifully 
left  to  the  jury,  in  aid  of  their  incjuiries  into  the  origin  and  i)rogross  of  the 
conflict  in  which  the  prisoner  took  the  other's  life."  This  principle  is  sus- 
tained by  the  late  case  of  Haicthorne  v.  The  State,  61  Miss.,  749.  See,  also. 
State  V.  Keene,  50  Mo.,  357;  People  v,  Lambert,  17  Cal.,  316. 

In  Franklin  v.  Tlie  State,  29  Ala.,  14,  Walker,  J.,  says :  "  When  the  con- 
duct of  the  deceased,  although  in  itself  innocent,  is  such  that,  illustrated  by 
his  character,  its  tendency  is  to  excite  a  reasonable  belief  of  imminent  peril, 
the  evidence  ought  to  be  admitted,  and  the  question  of  its  effect  left  to  the 
determination  of  the  jury.  It  would  be  for  the  court  to  determine,  in  every 
case,  whether  the  facts  are  such  as  will  justify  the  admission  of  the  evidence, 
as  it  is  its  duty  to  determine,  before  receiving  in  evidence  the  declarations 
of  third  persons,  whether  they  are  part  of  the  res  gestae." 

In  The  People  v.  Lavib,  41  N.  Y.,  360,  Davies,  Ch.  J.,  says:  "  It  is  con- 
ceded that  such  evidence  can  only  be  projjer  in  a  case  where  the  evidence 
shows  that  there  was  an  assault  committed  or  threatened  by  the  deceased 
upon  the  prisoner,  and  a  doubt  wjvs  created  whether  the  homicide  was  per- 
petrated from  malice  or  to  repel  such  assault,  and  from  a  principle  of  self- 
defense.  Now,  it  has  been  shown,  and  it  is  submitted  conclusively,  that  no 
such  question  legitimately  arose  upon  the  evidence  in  this  case.    The  de- 


'¥^ 


PANTON  V.  THE  PEOPLE. 


437 


kohis  lifo; 
il)t  to  coin- 
fc  1ms  been 
pt  has  been 
his  family 
lit,  we  hold 
c.    He  may 
or  any  law- 
y  meets  his 
execute  his 
its,  the  i>ev- 
;teiKlin};  till! 
vfersary  i>uls 
safety  in  no 
le  is  actually 
like  a  wilil 
ting  in  onlt'i" 
L>mantls  tluit 
nieetinj;." 
.  (Battli!,  J., 

if  another  of 
intl  when  ho 
evidence  had 
there  was  no 
:,  that  exteu- 
!s  the  resent- 
ise  is  one  of 
s  (juarrel  and 
be  mercifully 
o<;ress  of  the 
nciple  is  sus- 
[9.    See,  also, 

Vhen  the  con- 
illustrated  by 

niineut  peril, 
ct  left  to  the 
mine,  in  every 

the  evidence, 
B  declarations 

"  It  is  con- 

j  the  evidence 

the  deceased 

icido  was  per- 

nciple  of  self- 

ively,  that  no 

fcase.    The  de- 


e 


ceased  was  not  shown  to  liave  committed  any  assault  upon  the  prisoner,  nor 
did  she  threaten  to  commit  any.  There  was  no  foundation,  therefore,  for 
the  position  that  the  prisoner  committed  the  homicide  in  self-defense,  or 
from  any  apprehension  of  great  or  any  bodily  harm." 

Such  evidence  is  inadmissible  unless  preceded  by  some  hostile  act  toward 
accused.  State,  v.  Bridwell,  36  La.  Ann, ,  859.  Before  such  evidence  is  admis- 
sible it  must  appear  that  the  prisoner  had  been  assailed.  Dnyalv.  State,  70  Ga., 
134.  And  that  deceased  intended  to  harm  defendant.  Creswell  v.  State,  14 
Tex.  Ct.  App.,  1.  When  the  evidence  shows  a  malicious  and  deliberate 
taking  of  life,  evidence  of  the  turbulent,  (juarrelsome  and  dangerous  disposi- 
tion of  deceased  should  not  be  received.     McKeon  v.  People,  6  Col..  .346. 

In  Brown  v.  The  State,  74  Ala.,  478,  it  was  held  that  on  a  murder  trial 
declarations  by  the  decease<l,  who  wa.s  killed  in  a  hand-to-hand  encounter, 
that  "  I  would  have  gotten  him  if  he  had  not  been  too  quick  for  me,"  which 
were  admitted  as  dying  declarations,  were  admissible  to  show  the  anitiiiis 
of  tlie  dei^eased  iis  bearing  ui)on  the  defendant's  plea  of  self-defense.  How- 
ever, Brickell,  C.  J.,  dissented  from  this  oj^nion. 

In  lioyte  v.  The  State,  97  Ind.,  823,  which  w.as  a  trial  for  murder,  the  de- 
fendant i)leaded  in  self-defense  that  when  he  shot  the  deceased  the  latter 
was  striking  at  him  with  a  knife,  and  it  was  held  th.at  evidence  to  the  effect 
that  the  night  before  the  deceased  told  the  defendant  of  two  felonious  as- 
saults which  he  had  committed,  and  that  he  jircfcrrod  a  knif(>  to  a  pistol,  as 
more  effective,  was  admissible  as  showing  that  defend.ant  had  ground  for 
believing  that  the  attack  on  him  was  felonious. 

Burden  of  j^roof.— In  The  State  v.  Foider,  52  Iowa,  1(«  [106],  Day,  J., 
said : 

"  The  court  gave  the  jury  some  general  instructions  upon  the  doctrine  of 
self-defense.  The  defendant  asked  the  court  to  instruct  the  jury  as  follows : 
'The  burden  of  proving  that  the  defend.ant  was  not  acting  in  self-defense  is 
ujion  the  state,  and  tliis  it  must  prove  beyond  a  reasonable  doubt,  and  if  it 
hiis  failed  so  to  do  you  should  acquit.' 

"  No  instruction  embodying  this  thought  was  given.  The  burden  of  proof 
is  ujKin  the  state  to  show,  from  the  circumstances  attending  the  commission 
of  the  offense,  that  the  defendant  did  not  act  in  self-defense.  State  v. 
Morphi/,  33  Iowa,  270;  State  v.  Porter,  34  id.,  131  (140)."  See,  also,  Tireedy 
V.  riir  State,  5  Iowa,  433?  The  People  v.  Sehryvcr,  43  N.  Y.,  1. 

It  would  seem  that  after  the  state  makes  out  its  case,  the  burden  of  prov- 
ing an  independent  defense,  based  upon  facts  which  do  not  form  a  part  of 
the  rca  gcnto',  rests  upon  the  accused.  But  the  rule  is  otherwise  as  to  all 
matters  giowing  out  of  the  res  geatce  which  tend  to  extenuate  the  offense 
or  disprove  the  charge.  As  to  such  matters  it  is  hardly  correct  to  say  that 
the  burden  of  jjroof  is  ever  ca.st  upon  the  defendant.  The  state  must  make 
out  its  ichole  case  in  the  first  instance,  after  which  the  defendant  may  or 
may  not  introduce  matters  in  defense,  mitigation  or  justification,  and 
whether  he  do  or  not,  if,  upon  the  whole  evidence,  the  jury  entertain  a  rea- 
sonable doubt  of  the  guilt  of  the  accused,  he  is  entitled  to  an  acquittal. 


'T 


^m 


438 


AMERICAN  CRIMINAL  REPORTS. 


■  .4;'- 
■f4« 


Cakb  v.  State. 

(43  Arkansas,  00.) 

Murder:  Arrest  —  Felon  resisting  or  flying  may  be  slain  —  Evidence—  Ron 
gestae — Principal  and  accessory —  Unlawful  combination. 

1.  Impeachino  character  of  witness.— The  state  cannot  impeach  tho 

character  of  a  witness,  nor  discredit  him  before  tlie  jury,  nor  iinj)air 
the  weight  of  his  testimony  by  evidence  tliat  he  had  been  indicted  for 
a  felony. 

2.  Res  oest^  AitE  the  surrounding  facts  of  a  transaction,  cxi)Ian;i- 

tory  of  an  act,  or  showing  a  motive  for  acting.  They  may  Ix'  sub- 
mitted to  the  jury  provided  they  can  be  established  by  conipi-tLMit 
means,  sanctioned  by  the  law,  and  afford  any  fair  preaumi)tioii  or  in- 
ference as  to  tlie  question  in  dispute. 

8.  Same.— Circumstances  and  declarations  contemi>oraneous  with  the 
main  fact  under  consideration,  or  so  nearly  related  to  it  as  to  illustrate 
its  character  and  the  state  of  mind,  sentiments  and  disposition  of  tlio 
actors,  are  parts  of  the  res  gestoi  —  are  regarded  as  verbal  facts  indicat- 
ing a  present  purpose  and  intention,  and  therefore  admitted  in  proof  as 
any  other  material  facts. 

4.  Duty  of  trial  courts  in  admittino  evidence.— The  circuit  courts 
sliould,  in  the  trial  of  criminal  causes,  admit  all  testimony  oflfercd,  of 
wliich  they  doubt  the  competency. 

6.  Pursuer  may  slay  a  felon  if  he  resist  or  fly.— If  a  felon  resist 
arrest  or  fly  so  tliat  he  cannot  jmssibly  be  apprehended  alive  by  tliose 
who  pursue  him,  whether  private  persons  or  public  officers,  witli  or 
without  a  warrant  from  a  magistrate,  he  may  be  lawfully  slain  by 
them. 

6.  Same  —  Bur  in  such  case  it  must  appear  that  a  felony  has  hekn 

committed. —  Where  a  felony  has  in  fact  been  committed,  either  an  offi- 
cer or  a  private  citizen  who  has  reasonable  gi'ound  to  suspect  a  particu- 
lar person,  may,  acting  in  good  faith,  arrest  him,  without  incurring  any 
liability,  civil  or  criminal,  though  the  suspicion  prove  unfounded.  But 
if  no  offense  be  in  fact  committed,  a  private  person  making  such  arrest 
will  not  be  justified  by  such  suspicion  and  good  faith,  though  an  officer 
will  be. 

7.  Conspirators  jointly  liable  for  result  of  UNLAWFxn:i  comhina- 

TION. —  When  persons  combine  to  do  an  unlawful  thing,  if  the  act  of 
one  proceeding  according  to  the  common  plan  ends  in  a  criminal  re- 
sult, though  not  the  particular  result  intended,  all  are  liable. 

Appeal  from  Howard  Circuit  Court.     Hon.  H.  B.  Stuart, 
Circuit  Judge. 

Dan  W.  Jomsy  J.  E.  Borden  and  W.  G.  Wiipple,  for  appel- 
lants. 

C.  B.  Moore^  attorney-general,  contra. 


CARR  V.  STATE. 


439 


ndencc—  Ron 
tiun. 

impcacli  the 
y,  nor  impair 
1  indicted  for 

'ION,  cxplana- 
may  Im'  sub- 
by  conipett'iit 
iniitioii  or  in- 

ous  with  the 
US  to  iUustralc 
)08itinii  of  tlio 
I  facts  inilicat- 
ted  in  pro(jf  as 

circuit  courts 
ony  ottered,  of 

a  felon  resist 

alive  hy  those 

flicers,  with  or 

fully  slain  by 

.ONY  HAS  «EKN 
J.eitheranoiti- 
ipect  a  particu- 
t  incurring  any 
ifounded.  But 
cing  such  arrest 
lough  an  otticer 

WVlfL  COMBINA- 

ig,  if  the  act  of 
n  a  criminal  re- 
liable. 

I.  13.  Stuart, 


)(e,  for  api>«^ 


SMiTir,  J.  After  tlie  case  of  Carr  ct  aJ.  v.  State,  reported  in 
42  Ark.,  204,  had  been  remanded  to  the  circuit  court,  Carr 
elected  to  sever,  was  put  upon  trial,  convicted  of  murder  in  the 
tirst  degree,  and  a  second  time  sentenced  to  be  hanged.  The 
evidence  amply  justified  the  verdict,  and  the  court  successfully 
ran  the  gauntlet  of  passing  upon  twenty-six  prayers  for  direc- 
tions prepared  by  the  energetic  counsel  for  the  prisoner. 

Two  of  the  defendant's  witnesses  were  required  to  answer, 
upon  cross-examination,  if  they  had  not  once  been  indicted  for 
this  same  murder. 

It  was  not  competent  for  the  state  to  impeach  the  char- 
acter of  these  witnesses,  or  discredit  them  before  the  jury,  or 
impair  the  weight  of  their  testimony  in  this  manner.  Anderson 
V.  State,  34  Arlc,  257. 

When,  before  final  submission  of  the  cause,  irrelevant  evi- 
dence which  had  been  adtnitted  was  withdrawn  from  the  jury 
and  they  instructed  to  disregard  it,  the  presumption  is  that  the 
jury  based  their  verdict  upon  legal  evidence  only,  l^enmylvatiia 
Co.  V.  Hay,  102  U.  S.,  451. 

The  court  afterwards  repaired  this  error  by  directing  the 
jury  to  exclude  from  their  consideration  and  pay  no  attention 
to  the  fact  that  these  witnesses  had  previously  been  under 
indictment  for  the  same  offense. 

The  defendant  also  offered  to  prove  by  a  witness  that  he  and 
some  twenty  or  thirty  other  colored  men  assembled,  on  the 
night  before  Wyatt  was  killed,  at  a  church  in  Hempstead 
county,  near  the  house  of  Wyatt,  who  resided  in  Howard,  for 
the  purpose  of  concerting  means  to  secure  his  arrest;  that  they 
had  reasonable  grounds  to  believe  that  he  had  just  before  com- 
mitted two  distinct  felonies  in  Hempstead,  namely,  an  assault 
with  intent  to  kill,  and  an  attempt  to  ravish.  That  they  were 
acting  under  legal  advice,  or  supposed  they  were;  that  the 
meeting  on  the  following  morning  was  to  carry  into  execution 
the  plan  and  design  then  formed  and  entered  into,  the  sole  ob- 
ject being  to  arrest  Wyatt  and  take  him  before  a  nuigistrate  to 
be  dealt  with  according  to  law,  and  not  to  kill  him  or  in  any 
wise  to  do  him  bodily  injury.  But  the  court  rejected  the  evi- 
dence. 

Res  gestce  are  the  surrounding  facts  of  a  transaction,  explan- 
atory of  an  act,  or  showing  a  motive  for  acting.    They  are 


Jil 

\..v.     :.    . 


{■».       IJ 


440 


AMERICAN  CRIMINAL  REPORTS. 


proper  to  be  submitted  to  a  jury,  provided  they  can  be  estab- 
lished by  competent  means,  sanctioned  by  the  hiw,  and  afford 
any  fair  presumption  or  inference  as  to  the  question  in  dispute. 
The  fact  that  Wyatt  came  to  liis  death  by  violence  at  tlio 
hands  of  a  mob,  of  which  Carr  A'as  tha  ringleader,  not  beiii^r 
seriously  controverted,  it  became  necessary  to  determine 
whether  malice  entered  as  an  ingredient  into  such  killing;  and 
if  so,  tlien  whether  it  was  accompanied  by  those  evidences  of 
deliberation  and  premeditation  which  characterize  the  higliest 
degree  of  murder.  Now  circumstances  and  declarations  which 
were  contemjioraneous  with  the  main  fact  under  consideration, 
or  so  nearly  related  to  it  as  to  illustrate  its  character  and  the 
state  of  mind,  sentiments  or  dispositions  of  the  actors,  are  parts 
of  the  ren  gedw. 

They  are  regarded  as  verbal  facts,  indicating  a  present  pur- 
pose and  intention,  and  are  therefore  admitted  in  proof  like 
any  other  material  facts.  1  Gr.  Ev.,  sees.  108-111;  Wharton's 
Cr!  Ev.,  sees.  202-270;  1  Bishop,  Cr.  Pro.,  sees.  10S;3-los7; 
Clinton.  V.  Edes,  20  Ark.,  210;  Beaver  v.  "Taylor,  1  Wall.,  ();}T: 
Inmrance  Co.  v.  Modey,  8  id.,  637. 

Thus  on  the  trial  of  Lord  George  Gordon  for  treason,  the 
cry  of  the  mob  who  accompanied  the  prisoner  on  his  enterprise 
was  received  in  evidence,  as  forming  part  of  the  nw  gesUn  and 
showing  the  character  of  the  principal  fact.  24  Ilowell's  St. 
Tr.,  542. 

In  Pitman  v.  State,  22  Ark.,  2.')4,  uncommunicated  threats, 
made  by  the  deceased  on  the  day  of  the  killing,  were  admitted. 

Nor  need  any  such  declarations  be  strictly  coincident  as  to 
time,  if  they  are  generated  by  an  excited  feeling  which  ex- 
tends without  break  or  let  down  from  the  moment  of  the 
event  they  illustrate.  But  they  must  stand  in  immediate  causal 
relation  to  the  act,  and  become  part  either  of  the  action  imme- 
diately preceding  il,  or  of  action  which  it  immediately  pro- 
cedes.    Wharton's  Cr.  Ev.,  .sec.  203 ;  2  Bishop,  Cr.  Pro.,  sec.  025. 

Thus  in  Cornelius  v.  State,  12  Ark.,  782,  when  defendant  was 
tried  for  larceny  of  his  neighbor's  cow,  and  it  was  proved  ho 
had  killed  the  cow  in  his  pen  about  3  A.  M.,  declarations  made 
the  night  before,  in  presence  of  his  family  and  visitors,  of  his 
intention  to  kill  the  cow  before  day  and  sell  her  for  beef,  and 
that  he  had  authority  from  the  owner  so  to  do,  if  he  would 


CARR  1'.  STATE. 


441 


)e  cstal)- 
id  afford 
I  dispute. 
0  at  the 
lot  beiii^r 
determine 
ling;  and 
lences  of 
0  highest 
jns  whic'li 
idcration. 
r  and  the 
,  avo  parts 

esent  pur- 
proof  hke 
VVharton's 
OSS-losT; 
iVall.,  Oai: 

reason, the 
enterprise 

v  qedo',  and 
owcU's  St. 

3d  threats. 

admitted, 
ident  as  to 
which  ox- 
ent  of  the 
iatc  causal 
tion  imme- 
diately pre- 
:'o.,  sec.  fi2'». 
endant  was 

proved  he 
itions  made 
tors,  of  his 
)r  beef,  and 
if  he  would 


pay  for  licr,  and  directions  given  to  his  slaves  in  reference  to 
tlie  matter,  wore  adjudged  to  bo  competent  evidence  to  show 
his  intentions  in  killing  the  cow. 

Evidence,  then,  of  what  was  done  find  said  at  the  church  on 
the  night  before,  was  clearly  admissible  provided  any  conm^c- 
tion  is  shown  between  those  proceedings  and  the  subsequent 
homicide.  And  the  exclusion  of  the  same  was  a  reversible 
error.  For  appellate  courts  are  not  at  liberty  to  speculate  what 
etfect  tlie  evidence  would  have  had,  if  admitted,  or  whether 
it  would  have  altered  the  result.  On  the  contrarv,  we  are 
bound  to  reverse  for  any  erroneous  ruling  below,  which  pre- 
vents a  party  from  getting  his  case  properly  before  the  jury. 
In  other  words  we  are  bound  to  see  that  he  has  a  fair  ti-ial. 
And  in  this  connection  wo  recommend  to  the  circuit  judges,  in 
the  trial  of  criminal  cases,  to  admit  all  testimony  that  may  bo 
otfered,  about  the  competency  of  which  they  are  in  doubt. 
For,  if  the  accused  bo  guilty,  he  will  be,  in  the  vast  majority  of 
instances,  convicted,  notwithstanding  the  admission  of  such 
evidence.  Whereas  the  rejection  of  it,  if  it  turns  out  to  bo 
competent  evklonco,  is  fatally  erroneous. 

Two  oilier  questions  are  presented  by  the  record,  which  it  is 
deeniou  important  io  discuss,  because  they  are  reasonably  sure 
to  arise  upon  a  second  trial.  The  court  was  re(]uested  to  charge 
that,  by  the  laws  cf  this  state,  any  private  ]>erson  may  arrest 
one  who,  ho  has  roasionable  cause  to  believe,  lias  been  guilty  of  a 
felony.  Therefore,  if  the  juiy  should  find  from  the  evidence 
that  Carr  had,  on  the  31st  of  July,  18S3,  reasonable  grounds 
to  believe  that  "Wyatt  had  attempted  to  commit  a  rape  or  an 
assault  with  intent  to  kill,  and  that  Carr  was  engaged  in  secur- 
ing his  arrest  therefor,  he  had  a  right  to  visit  "Wyatt's  i)]ace 
for  that  ]>urpose  without  a  Avarrant  and  to  take  steps  necessary 
tothatond;  and  it  is  immaterial  whether  Wvatt  had  in  fact 
been  guilty  of  any  crime.  And  tiiis  request  was  repeated  in 
several  forms,  all  of  which  were  denied. 

"  A  private  person  may  make  an  arrest  where  he  has  reason- 
able grounds  for  believing  that  the  pei'son  arrested  has  com- 
mitted a  felony."    C4antt's  Dig.,  sec.  1679. 

This  statute  is  in  aiiirraance  of  the  common  law.  "  If  a 
person,  having  actually  committed  a  felony,  will  not  suffer  him- 
self to  be  arrested,  but  stand  on  his  own  defense,  or  fly,  so  that 


442 


AMERICAN  CRIMINAL  REPORTS. 


he  cannot  possibly  be  apprehended  alive  by  those  who  pursue 
him,  whether  private  persons,  or  public  officers,  with  or  with- 
out a  warrant  from  a  magistrate,  he  may  be  lawfully  slain  by 
them."     1  Hawkins,  P.  C,  p.  81,  sec.  11. 

"  If  a  felony  be  committed  and  the  felon  fly  from  justice,  or  a 
dangerous  wound  be  given,  it  is  the  duty  of  every  man  to  use 
his  best  endeavors  for  preventing  an  escape;  and  if  in  the  pur- 
suit the  felon  be  killed,  when  he  cannot  be  otherwise  overtaken, 
the  homicide  is  justifiable.  This  rule  is  not  confined  to  those 
who  are  ])rescnt,  so  as  to  have  ocular  i)roof  of  the  fact,  or  to 
those  who  first  come  to  the  knowledge  of  it;  for  if  in  these 
cases  first  pursuit  be  made,  and  a/ortiori  if  hue  and  cry  be  levied, 
all  who  join  in  aid  of  those  who  began  the  pursuit  are  under 
the  same  protection  of  the  law."     1  East,  P.  C,  298. 

Here  the  rule  is  stated  with  its  limitations,  namely :  That  if 
the  offense  has  been  in  faT;t  committed,  and  an  individual  has 
reasonable  cause  to  suspect  a  particular  person,  ho  may,  acting 
in  good  faith,  arrest  him,  without  incurring  any  liability,  civil 
or  criminal,  should  the  suspicion  prove  unfounded.  And  when 
the  felony  is  past,  the  only  distinction  between  the  power  of  an 
officer  and  a  private  person  arresting  without  a  warrant  is  this; 
"  Should  the  one  arrested  be  found  not  to  be  guilty,  the  private 
person  will  i:ot  be  justified  unless  an  offense  has  been  commit- 
ted by  some  one;  while  the  officer  is  justified  though  no  offense 
has  been  committed;  \^et  both  must  have  had  reasonable  cause 
to  suspect  the  one  a])prehended.  For  when  a  charge  of  this 
high  nature  is  made  to  an  officer,  he  is  bound  to  act  upon  it 
and  ])ursue  and  arrest  the  suspected  person  at  once;  and  it 
would  block  the  wheels  of  justice  if  he  could  not  do  his  olHciai 
duty  without  being  answerable,  should  the  event  prove  that 
the  reasonable  suspicion  could  not  be  made  good  by  evidence." 
1  Bishop,  Cr.  Pro.,  sees.  108,  ISl. 

There  wiis  no  proof  in  this  case  that  Wyatt  had  committed 
any  felony. 

The  court  gave  this  instruction,  which  is  rather  too  favorable 
to  the  defendant :  "  If  the  defendant  was  jointly  with  others  as- 
sembled together  in  the  commission  of  a  trespass,  or  perpetra- 
tion of  a  crime,  and  one  or  more  did  a  criminal  thing  in  no 
way  connected  with  the  joint  umlerstanding,  tlie  defendant  is 
not  liable." 


ANDERSON  v.  THE  STATE. 


443 


>  pursue 
or  with- 
slain  by 

tice,  or  a 
an  to  use 
L  the  pur- 
vertaken, 
[  to  those 
!act,  or  to 
f  in  these 
be  levied, 
are  under 

f.  That  if 
vidual  has 
lay,  acting 
jility,  civil 
And  when 
owcr  of  an 
int  is  this : 
;he  private 
n  comniit- 
no  offense 
able  cause 
o-e  of  this 
Lct  upon  it 
ice;  and  it 
his  olhciai 
irove  that 
evidence." 

committed 

o  favorable 
others  as- 
>r  pcrpetra- 
tliin<>-  in  no 
■eiendant  is 


The  law  upon  this  subject  is,  that  "  a  man  may  be  guilty  of 
a  wrong  which  ho  did  not  specifically  intend,  if  it  came  natur- 
ally or  oven  accidentally  from  some  other  specific,  or  a  general, 
evil  purpose.  When,  therefore,  persons  combine  to  do  an  un- 
lawful thing,  if  the  act  of  one,  ])roceeding  .locording  to  the 
common  plan,  terminate  in  a  criminal  result,  though  not  the 
])articular  result  meant,  all  are  liable."  Bishop,  Cr.  Law,  sec. 
030,  and  authorities  there  cited. 

Thus  in  Stephens  v.  State,  a  recent  unreported  decision  of  the 
supreme  court  of  Ohio,  where  several  agreed  to  rob  a  man  at 
his  house  and  one  remained  outside  on  guard,  while  the  others 
went  inside,  and,  in  order  to  rob  him,  killed  him,  it  was  held 
that  the  one  outside  was  guilty  of  murder  also,  although  mur- 
der was  not  contemplated  in  their  conspiracy,  but  it  was  the 
onl}"^  means  of  accomplishing  their  ends. 

Reversed  and  remanded  for  a  new  trial. 


Andeusox  v.  Tue  State. 

(73  Ga.,  98.) 

Muudeb:  Continuance  —  Discretion  of  court  —  Dill  of  exceptions  —  Con- 
fessions. 

1.  The  SHOWixa  in  support  of  a  motion  for  coxiinuance,  on  the  ground 

of  tlie  absence  of  witnesses,  should  be  full,  satisfaetory  and  dii'ect  as 
to  the  material  allegations  nocesaarj-  for  that  purpose;  it  should  appear 
that  there  is  no  otlier  witness  present  by  whora  the  defendant  c.in  sat- 
isfactorily prove  the  same  facts,  and  that  such  facts  would  be  evidence 
in  the  case. 

2.  DiscMtETiON  of  the  court.— Continuances  of  a  criminal  case,  after  the 

lirst  term,  rest  in  the  sound  discretion  of  the  court ;  and  even  at  the 
liret  term,  all  discretion  is  not  denied  to  the  judge. 

3.  The  bill  of  excfitions  should  si)ecify  plainly  the  decision  complained 

of.  An  assigmnent  of  error  that  the  entire  charge  is  enoneous  is  too 
general,  if  any  part  of  it  be  correct. 

4.  While  coNFEssiOiVS  op  guilt  should  be  received  with  great  caution,  and 

will  not,  alone,  justify  a  conviction,  j'et  if  they  should  be  corro!x)rated 
by  circumstances,  they  would  be  sutHcient  for  that  purpose. 

5.  Preliminary  examination  as  to  admissibility  of  confessions.— Where 

the  preliminary  examination  as  to  the  admissibility  of  confessions  wa.s 
ci)iuluited  in  the  piesence  of  the  jury,  and,  being  found  comi^et-nt, 
'  they  were  athnitted,  this  was  not  such  error  as  would  require  a  new 

tiial ;  aliter,  had  the  confessions  been  inadmissible. 


4'A 


AMERICAN  CRIMINAL  REPORTS. 


Before  Judge  Adams.    Mcintosh  Superior  Court. 

Garrard,  Meldrim  db  Fraser,  for  plaintiff  in  error. 
C.  Anderson,  attorney -general ;   ir.   G.   Charlton,  solicitor- 
general,  by  Harrison  da  PeejpUs,  for  the  state. 

Hall,  Justice.  The  prisoner  and  his  brother,  Ponipoy  An- 
derson, were  indicted  jointly  for  the  murder  of  Chance  J'lown. 
When  the  case  was  called,  the  defendants  severed,  and  the 
prisoner  was  put  upon  his  trial.  He  moved  for  a  continuance, 
and  put  his  showing  in  writing,  to  the  effect  that  Jjarbara  An- 
derson, and  other  witnesses  subpoenaed  for  them,  were  absent 
without  his  consent,  etc.,  on  account  of  sickness;  that  lio 
expected  to  prove  by  them  that  Pompey  Anderson  was  absent 
from  the  scene  of  the  homicide  at  the  time  it  was  coinmittod, 
and  could  not  have  participated  therein.  This  showing  for  a 
continuance  was  overruled,  and  the  trial  proceeded.  The 
defendant  was  convicted,  and  made  a  motion  for  a  new  trial 
upon  various  grounds,  which  was  overruled  by  the  court.  In 
this  motion  was  included  the  judgment  overruling  the  continu- 
ance. The  evidence  uj)on  which  the  defendant  was  convicted 
consisted  principally  of  bis  own  confessions,  made  to  one 
McGriff,  who  was  confined  in  ^Mcintosh  jail  at  tlie  time  defend- 
ant was  committed,  and  who  thereafter  occupied  witli  liim  the 
same  cell  in  the  ])ri.son.  Defendant  stated  to  McCJritf  tiiat  ho 
"  would  not  be  tliere,  if  it  were  not  for  his  bi'otlier;  tliat  Char,  'o 
liad  detected  Pompey  killing  his  bog,  and  tliat  Pom|)ey  had 
come  to  bim  (Robert)  and  advised  him  of  the  fact,  saying  thoy 
must  put  an  end  to  Chance:  that  ho  (Robert)  had  tlien,  ;.i 
Pompey's  instance,  gone  to  Cliance's  house,  and  asked  him  if  it 
was  true  he  had  said  Pompey  had  stolen  his  hog.  Chance  said 
he  had.  That  lie  then  asked  him  if  ho  would  show  him  the 
place  whore  he  cauglit  Pompey,  and  Chance  assenting,  thoy 
thereupon  walked  to  the  spot  together,  Pompey,  by  arrange- 
ment, being  stationed  there  with  his  gun;  tliat  on  reaching  tho 
spot,  he  (Robert)  struck  Chance  on  tiie  forehead  with  his  sticix, 
and  Pompey  shot  him  in  the  head  from  behind;  that  they  tlion 
concluded,  from  the  fact  that  Patsy  had  seen  Chance  and  Rol)- 
ert  go  off  together,  that  they  were  in  a  bad  fi.x,  tind  to  secure 
themselves,  it  was  necessary  to  kill  the  woman,  whereupon  it 
Avas  agreed  that  Pompey  having  killed  Chance,  Robert  shouhl 


mmmm 


solicitor- 

iipoy  An- 
e  J'rown. 
and  the 
tinuance, 
•bara  A  li- 
re absent 
that  ho 
:as  al>sont 
junnittod, 
'ing  Tor  ii 
led.     The 
I  new  trial 
court.     In 
10  continu- 
convicted 
:lo   to  one 
ne  det'end- 
th  him  the 
itf  that  lie 
lat  Char.  -0 
:)nii>ey  had 
a  yin^'  tlioy 
id  then,  -.-i 
}d  him  if  it 
lianco  said 
i\v  him  tlic 
iting,  they 
)y  arran^c- 
achin^'  the 
,h  his  stieli, 
,t  they  then 
0  and  lioli- 
id  to  seeuie 
icreupon  it 
bcrt  should 


J 


ANDERSON  v.  THE  STATE. 


U6 


kill  Tatsy,  his  wife.  In  pursuance  of  this  arrangement,  they 
])i()ceeded  to  Chance's  liouse,  and  llobert,  inserting  the  gun 
through  a  crack,  shot  her  as  she  sat  by  the  fire. 

1.  There  was  no  error  in  disallowing  the  motion  for  a  con- 
tinuance or  in  refusing  a  new  trial  upon  that  ground.  The 
])residing  judge  seems  to  have  thought  that  sulHcient  diligence 
liad  not  been  shown  in  procuring  the  attendance  of  these  ab- 
■<c].t  Avitnosses,  for,  in  certifying  this  ground  of  the  motion,  ho 
states  that  the  case  was  sounded  some  days  previous  to  the 
trial,  with  the  object,  which  he  then  announced,  of  ascertain- 
ing whether  everything  was  in  readiness,  and,  if  parties  so  de- 
sired, of  having  witnesses  sent  for;  that  the  defendant  and  his 
counsel,  although  present,  gave  the  court  no  intimation  of  the 
absent  witnesses,  but  permitted  the  case  to  bo  marked  ready, 
the  court  acting  under  the  idea  that  the  defendant  Avas  pre- 
pared for  trial.  Whether  the  court  was  right  or  w'rong  in  sup- 
posing that  there  Avas  a  want  of  diligence  in  procuring  the 
attendance  of  these  witnesses,  yet  we  are  Avell  satisfied  that  the 
case  should  not  ha\'e  been  postponed  because  of  their  absence. 

The  absence  of  Ponipey  Anderson  from  the  scene  of  this 
double  murder,  at  the  time  it  Avas  committed,  did  not  account 
for  the  prisoner's  Avhereabouts,  and  did  not  negative  the  fact 
that  he  made  to  Mcdriff  the  full  and  circumstantial  confession 
deposed  to  by  him,  and,  if  admissible  at  all,  could  haA'e  had 
only  a  remote  bearing  upon  that  issue.  The  showing  did  not 
set  forth  that  the  defendant  had  no  other  Avitnesses  by  Avhom. 
ho  could  ])roA'e  the  same  facts,  nor  could  this  requirement  of 
the  law  liaA'o  been  complied  with,  as  the  prisonei*,  on  his  trial, 
introduced  at  least  three  other  Avitnesses  Avho  testified  to  sub- 
stantially the  same  facts.  In  Allen  v.  The  State,  10  Ga.,  85, 
this  court  held  that  the  affidavit  for  a  continuance  should  bfl 
full,  satisfactory  and  direct  as  to  the  material  allegations  nec- 
essary for  that  purpose,  and  shoukl  state  that  there  is  no  other 
Avitness  present  by  Avhom  the  party  can  satisfactorily  prove  thfl 
same  facts.  It  should  appear,  further,  that  the  facts  expected 
to  ho  ])roA'cd  Avould  be  evidence  in  the  case. 

This  intlictment  Avas  found  at  the  May  term,  1881;  the  trial 
did  not  take  place  until  the  May  term,  1883,  of  the  court.  By 
the  Code,  section  40-17,  every  indictment  stands  for  trial  at  the 


^'I;-r^ 


UG 


AMERICAN  CRIMINAL  REPORTS. 


i 


term  of  the  court  at  which  it  is  found,  unless  the  absence  of 
material  witnesses  or  the  principles  of  justice  should  require  a 
postponement  of  the  trial;  then  the  court  is  required  to  allow 
such  postponement  to  the  next  term.  Subsequent  continuances 
would  seem  to  rest  in  the  sound  discretion  of  the  court.  Griffin 
V.  The  State,  20  Ga.,  498,  500. 

The  court,  in  the  first  case,  is  required  to  grant  the  continu- 
ance for  the  specified  cause ;  in  the  last  case,  however,  it  has 
"  power  "  to  do  so.  liut,  although  required  to  grant  the  con- 
tinuance for  the  absence  of  material  witnesses  at  the  term  when 
the  indictment  is  found,  the  judge  is  not  even  then  deprived  of 
all  discretion  in  the  matter,  as  appears  to  have  been  ruled  in 
Malone's  Case,  49  Ga.,  215. 

It  was  urged  by  the  prisoner's  counsel  in  this  case,  that  the 
witnesses  sworn  accounted  for  the  absence  of  Pompey  Ander- 
son from  the  place  of  tlie  homicide  only  for  a  portion  of  the 
time  covered  by  tlie  transaction,  and  that  the  absent  witnesses, 
if  present,  would  have  made  complete  proof  of  the  alihi  as  to 
him.  This  i^  not  apparent  from  the  statement  made  in  the 
showing  for  a  continuance;  and  from  Avhat  is  <loveloped  in  the 
evidence  on  the  trial,  it  seems  highly  improbable  that  any  sat- 
isfactory account  could  have  been  given  of  him  by  these  wit- 
nesses during  that  alleged  interval;  for  it  a))pears  that  during 
all  the  time  these  witnesses  were  in  company  with  some  of  the 
witnesses  who  were  actually  sworn  on  the  trial.  When  the 
motion  for  a  new  trial  was  made,  these  absent  witnesses  were 
accessible;  their  aifidavits  coi'ld  have  been  obtained  and  made 
a  part  of  the  motion,  and  if  the  prisoner  had  suffcM'ed  injustice 
or  oppression  for  the  want  of  this  evidence,  the  fact  could  in 
that  \vi;y  have  been  made  to  appear,  l^ut  no  attempt  was  made 
to  procure  their  affidavits,  and  their  absence  is  a  potent  fact, 
justifying  the  conclusion  that  the  witnesses  could  not  have  sat- 
isfactorily accounted  for  Pompey  during  the  interval  in  ques- 
tion. "We  can  perceive  no  abuse  of  the  discietion  of  the  court 
in  overruling  this  motion  for  a  continuance,  and  will  not  un- 
dertake to  control  its  exercise,  unless  it  has  been  abused,  or 
has  resulted  in  oppression  to  the  accused.  This  is  the  well 
settled  rule  of  the  court.  Code,  section  3531,  and  cases  cite<l 
thereunder. 


ANDERSON  v.  THE  STATE. 


447 


m 


sence  of 
require  a 
to  allow 
iinuances 

,    Griffin 

continu- 
^er,  it  has 

the  con- 
erm  when 
jprived  of 
n  ruled  in 

,  that  the 
ey  Ander- 
on  of  the 
witnesses, 
alifii  as  to 
ide  in  the 
ped  in  the 
it  any  sat- 
these  wit- 
liat  dnrini,' 
nnic  of  the 
When  the 
losses  wore 
and  made 
hI  injustiee 
ct  could  in 
t  was  made 
(otent  fact, 
)t  have  sat- 
a,l  in  quos- 
)f  the  court 
vill  not  un- 
abused,  or 
is  the  well 
cases  cited 


2.  The  second  and  third  grounds  of  the  motion  for  a  new 
trial,  and  the  first  ground  of  the  amended  motion,  relate  to 
the  same  subject,  and  may  be  considered  together. 

They  assert  that  the  verdict  is  contrary  to  law  and  evidence 
and  without  evidence  to  support  it,  and  that  the  entire  charge 
of  the  court,  which  is  set  out  at  length,  is  erroneous.  There 
is  no  assignment  of  error  upon  any  portion  of  this  charge  save 
the  sweeping  one  above  stated.  This  practice  has  never  been 
sanctioned  by  this  court.  We  could  not  do  it  if  we  would,  for 
the  law  requires  that  "the  bill  of  exceptions  shall  specify 
plainly  the  decision  complained  of,  and  the  alleged  error,"  It 
is  unnecessary  to  cite  the  numerous  cases  on  this  point;  they 
are  uniform,  and  we  fail  to  find  one  that  departs,  even  re- 
motely, from  the  long  and  well-established  rule,  which  is 
coeval  with  the  court  itself. 

It  was  frankly  admitted  by  the  able  counsel  for  the  prisoner 
that,  if  his  confession  was  to  be  credited,  by  being  sufficiently 
corroborated,  and  if  it  was  uncontradicted  in  other  respects  and 
by  other  testimony,  then  the  verdict  of  the  jury  was  sustained 
by  the  evid(mce.  Notwithstanding  the  view  presented  by  them 
with  so  much  earnestness  and  plausibility,  we  are  constrained 
to  say  that  a  confession  so  clear,  positive,  direct  and  circum- 
stantial, and  one  so  fully  corroborated  by  the  independent  facts 
and  circumstances  attending  the  homicide,  as  proved  by  other 
witnesses,  has  rarely  come  under  our  observation.  To  quote 
the  words  of  the  solicitor-general,  "  it  gave  the  motive,  the 
manner,  the  results,  and  tlie  precautionary  efforts  to  conceal 
the  crime,  with  circumstantial,  ])lausible  and  reasonable  detail." 
Pompey,  it  seems  from  this  confession,  was  apprehended  in 
stcciling  the  hog  he  had  killed,  and  which  belonged  to  deceased. 
By  other  testimony,  it  a))peared  tliat,  at  the  house  of  the  latter, 
in  his  ox-cart,  in  which  he  had  that  day  been  to  Darien,  and  in 
which  he  was  seen  on  his  return  to  his  home,  this  ox,  still 
fastened  to  the  cart,  was  found  hitched  to  the  fence  before  his 
door,  and  in  the  cart  was  a  dead  hog,  killed  by  a  gun-shot 
wound,  and  having  its  ears  cut  otF.  Tiiis  mutilation,  it  is  rea- 
sonable to  suppose,  no  one  but  a  thief  could  have  any  adequate 
motive  for  making.  The  dead  man's  body  was  found  in  the 
woods,  a  short  distance  froni  his  own  house,  and  also  from  the 
house  of  prisoner.     When  it  was  found,  he  was  lying  on  his 


t"  1 


us 


AMERICAN  CRIMINAL  REPORTS. 


face  with  a  gun-shot  wound  in  the  back  of  his  head,  given  at 
such  short  range  that  the  hair  was  singed,  and  that  the  buck 
shot  entered  liis  head  in  a  hmip,  making  a  single  broad  and 
gliastly  wound,  and  on  liis  foreliead  was  a  gash  a  half  inch 
deep  and  from  two  to  two  and  a  half  inclios  long.  Inside  the 
house,  Patsy,  his  wife,  was  found  on  the  floor  dead,  with  a  gun- 
shot wound  in  her  head.  These  are  a  few  of  the  prominent 
facts  in  the  case,  proved  by  other  witnesses  tlian  tlio  one  who 
gave  evidence  of  the  confession.  Now,  compare  these  facts, 
and  otluM's  of  a  more  minute  and  less  prominent  character,  as 
testified  to  by  independent  witnesses,  with  the  confession  as 
detailed,  and  bear  in  mind  that  the  witness  speaking  of  the  con- 
fession was  a  stranger  at  the  place,  and  had  no  knowledge  of 
the  locality,  nor  of  the  persons  engaged,  and  could  have  known 
nothing  of  the  circumstances  attending  this  awful  tragedy,  and 
we  think  little  room  is  left  to  question  the  i)ropriety  of  this 
conviction.  The  recommendation  that  the  defendant  be  im- 
prisoned for  life  in  the  penitentiary  was  a  high  tribute  to  the 
skill  and  ability  of  the  counsel  who  defended  him.  According 
to  the  confession,  the  first  blow  was  struck  by  [)ris(>ner  on 
the  forehead  with  a  stick;  according  to  the  other  witnesses,  the 
prisoner  was  the  owner  of  the  stick,  which  he  habitually  car- 
ried and  which  was  shown  at  the  iiujuest,  having  a  fresh  made 
crack  in  it,  and  on  it  a  dark  spot.  The  deceased,  as  has  been 
seen,  had  on  his  forehead  such  a  wound  as  would  be  made  bv 
such  a  stick.  From  the  effect  on  the  stick,  and  the  character 
of  the  wound  on  the  forehead,  the  blow  must  have  been  given 
Avitli  great  force;  it  was,  at  least,  sulKciently  heavy  to  fell  the 
deceased. 

The  confession  stated  that  the  gun-shot  wound  was  given 
last,  and  at  short  range.  This  is  evidently  true,  since  the  en- 
tire load  of  buck  shot  entered  at  a  single  aperture,  and  the  hair 
on  the  scalp  at  the  spot  it  entered  was  burned.  The  position 
of  the  dead  man,  lying  on  his  face,  indicates  that  the  wound 
which  finished  him  must  have  been  given  after  ho  was  knocked 
down. 

The  confession  states  that  after  the  murder  it  wos  suggested 
that  the  wife  of  the  dead  man  would  be  a  witness  against  thoni, 
and  to  prevent  this  ])risoner  had  slain  her.  This  is  strongly 
corroborated  by  the  fact  that  she  was  found  dead  in  her  house, 


ANDERSON  r.  THE  STATE. 


449 


^iven  at 
ihe  buck 
oad  and 
lalf  inch 
iside  the 
th  a  gun- 
romincnt 
ono  ■who 
ese  facts, 
vacter,  as 
"ession  as 
f  the  con- 
wlcdge  of 
,ve  known 
,(••0(1  V,  and 
\ty  of  this 
lut  be  im- 
lUte  to  the 
According 
risoner  on 
:nesses,  the 
itually  cav- 
rosh  made 
IS  lias  been 
made  by 
character 
)COii  given 
to  foil  the 

Avas  given 
ice  the  cn- 
ml  the  hail- 
le  position 
tlu'  wound 
jis  knocked 


a  snggt'S 


sto.l 
aiiist  thou\, 
is  strongly 
L  her  house, 


with  a  gun-shot  wound  in  her  head,  indicating  clearly  that  she 
liad  been  assassinated  for  the  reason  given,  and  in  the  manner 
stated  by  the  confession. 

The  various  particulars  in  which  this  confession  has  been 
substantiated  by  other  evidence  show  the  strong  improbability 
of  its  having  been  fabricated  by  the  witness  ^LcGriff.  (.'on- 
sidcring  his  absence  at  the  time,  and  the  fact  that  he  was  en- 
tirely unacquainted  with  the  parties  and  the  locality;  knew 
nothing  of  their  relation  to  each  other,  and  was  an  utter 
stranger  in  the  neigh boriiood,  his  nan-ative  shows  ingenuity 
truly  wonderful,  and  no  mean  knowledge  of  the  requirements 
of  criminal  law.  This  witness  was  an  unlettered  and  ignorant 
coloivd  raft-hand,  and  could  not.  as  it  seems  to  us,  have  been 
instructed  in  details  so  minute  and  im])ortant  otherwise  than 
he  stated. 

Xow,  how  was  this  damaging  evidence  met?  The  defense 
attempted  to  show  that  he  was  present  at  the  coroner's  inquest, 
where  he  obtained  a  knowledge  of  these  circumstances;  this 
lie  emphatically  denied.  The  evidence  introduced  to  disprove 
tliis  denial  is,  to  say  the  least  of  it,  highly  improbable,  if  it  was 
not  successfully  impeached ;  at  all  events,  there  was  a  conflict 
of  evidence  upon  this  point,  and  the  jury,  after  weighing  the 
evidence,  chose  to  believe  the  state's  witness.  This  was  their 
undoubted  privilege,  and  the  judge  who  tried  the  case,  upon  a 
review  of  all  the  facts  on  the  motion  f(jr  a.  new  trial,  was  satis- 
lied  with  the  conchision  to  which  they  came,  and  so  far  from 
abusing  the  sound  legal  discretion  with  which  he  is  wisely  in- 
vested, we  concur  in  opinion  with  him.  that  the  verdict  should 
stand.  We  think,  as  we  have  l>efure  intinuited,  that  tlie  con- 
viction was  j)roj)er. 

There  is  not  a  doul)t  that  the  '•<>r/>>'.'<  delidl  was  established. 
Murder  most  foul  was  evidenlly  committed;  the  only  question 
to  l)e  (iocidt^l  was  as  to  the  perpetrator.  The  prisoner  declared 
that  lie  anil  another  w-ere  the  guilty  agents.  Was  his  volun- 
tary confession  to  be  credited?  While  it  is  true  that  confes- 
sions of  guilt  arc  to  be  ro<^eived  with  great  caution,  and  that 
they  will  not  alono  justify  a  conviction  (^Code,  sec.  3792),  yet, 
if  they  shoidd  bo  corroborated  ))y  circumstances,  they  would 
besutUciont  for  that  jnu-pose.     45  (ia.,  03;  05  id.,  152;  63  id., 

Vou  V  — 89 


450 


AMERICAN  CRIMINAL  REPORTS. 


m 


The  charge  given  in  this  case  upon  the  subject  of  circum- 
stantial evidence  and  confessions,  distinguishing  between  the 
two,  and  as  to  the  amount  of  evidence  required  to  convict  in 
such  cases,  was  clear,  explicit  and  proper;  it  was  just  what  it 
should  have  been.  This  much  we  say  in  response  to  the  criti- 
cisms made  upon  it  in  argument.  The  inability  of  the  de fond- 
ant's learned  counsel  to  point  out  specifically  the  errors  alleged 
to  be  contained  in  it  is  its  best  vindication. 

3.  There  was  no  error  in  conducting  the  preliminary  exam- 
ination as  to  the  admissibility  of  confessions  in  the  presence  of 
the  jury,  inasmuch  as  the  testimony  was  found  to  be  compe- 
tent and  was  admitted.  This  would  have  been  error  had  it 
been  rejected.     IlaU  v.  The  State.  65  Ga.,  36;  Jones  v.  State, 

id.,  506. 

Judgment  affirmed. 


"Wkt,ch  v.  State. 

(104  Ind.,  347.) 

Murder:  Indictment  —  Evidence  —  Flight. 

1.  Indictment. — An  indictment  against  one  for  murdering  anotlior  witli  a 

club  need  not  aver  that  the  accused  "  tlien  and  there  lield  the  clul)  in 
his  hands  "  at  the  time  of  the  killing. 

2.  Collateral  matters  —  Impeachment.—  When  a  witness  is  crops-oxam- 

ined  on  a  matter  collateral  to  the  issues,  his  answer  is  conrhisive  as 
against  the  party  putting  the  question,  and  cannot  be  contradicted  by 
him  by  way  of  impeachment. 

3.  When  immaterial. —  In  a  pi'osecution  for  murder,  where  no  evidence 

was  introduced  by  the  state  to  show  flight  or  evasion  of  arrest,  evi- 
dence of  a  third  person  that  tlie  accused  publicly  stated  his  intention  of 
going  away  to  get  work,  and  not  to  avoid  prosecution,  is  immaterial 
and  inadmissible. 

Appeal  from  Monroe  Circuit  Court. 

/.  //.  Louden  and  R.  W.  Mievs,  for  appellant. 
./.  E.  Henley,  prosecuting  attorney,  and  W.  P.  Rogers,  for  the 
state, 

Mitchell,  J.     The  indictment  in  this  record  charges,  with 
proper  formality,  that  on  the  4th  day  of  January,  1885,  Will- 


WELCH  V.  STATE. 


451 


of  circura- 
jtween  the 
»  convict  in 
jUst  what  it 
to  the  criti- 
the  (lefcnd- 
rors  alleged 

inary  exam- 
presence  of 
►  be  compe- 
;rror  had  it 

mes  V.  State, 

it  affirmed. 


another  with  a 
held  tho  chib  in 

(39  is  crops-oxiim- 
is  conrhisive  as 
contradicted  by 

here  no  evidence 
9n  of  arrest,  evi- 
d  hlB  intention  of 


an, 


,  is  immaterial 


Rogers,  iori^e 

i  charges,  witli 
iry,  1885,  Will- 


iam Welch  (lid  feloniously,  etc.,  kill  and  murder  one  liOuis  Fed- 
der,  by  then  and  there  feloniously,  etc.,  "  striking  him,  the  said 
Louis  Fedder,  upon  his  head  with  a  dangerous  and  deadly 
weapon,  to  wit,  a  large  heavy  club,  which  he,  the  said  William 
Welcli,  had  and  held  in  his  hands."  The  only  objection  made 
to  the  indictment  is  that,  by  the  omission  of  the  words  '*then 
and  there  "  after  tho  name  of  the  accused,  as  last  above  set 
out,  it  fails  to  allege  that  the  defendant  had  the  club  in  his 
hand  at  the  time  of  the  beating  and  striking.  Within  the  rul- 
ing in  Dennis  v.  State,  103  Ind.,  142,  there  is  no  force  in  this 
objection. 

The  accused  was  found  guilty  of  murder  in  the  first  degree, 
and  his  punishment  fixed  at  imprisonment  for  life.  His  con- 
viction re',ts  largely,  if  not  entirely,  upon  the  testimony  of  one 
Matthew  James,  whose  evidence  relates  wholly  to  alleged  con- 
fessions or  admissions  made  by  the  defendant  to  him.  Besides 
the  testimony  of  James  are  some  criminating  circumstances  of 
more  or  less  weight. 

The  evidence  of  the  alleged  confession,  as  detailed  by  this 
witness,  is  not  altogether  free  from  suspicion;  and  the  circum- 
stances under  which  it  is  said  to  have  been  made,  and  the  not 
altogether  unblemished  reputation  of  the  witness,  as  it  is  made 
to  appear  in  the  record,  detract  somewhat  from  the  force  and^ 
reabonableness  of  the  confession  as  related  by  him.  Notwith- 
standing this,  considering  the  other  circumstances  Avhich  ap- 
pear, since  the  jury  have  passed  upon  it,  we  should  hesitate  to 
disturb  their  finding  on  the  evidence.  The  witness  testified 
that  the  defendant  made  admissions  to  him,  indicative  of  his 
gMilt,  in  the  presence  of  Andrew  Cooper  and  Charles  Young. 
Both  of  these  persons  were  called  as  witnesses  for  the  defense, 
and  both  denied  having  heard  anvthing  of  the  kind  testified  to 
by  James. 

Cooper,  having  testified  on  his  direct  examination  that  he 
heard  no  confession  made  by  the  defendant  to  James,  and  no 
talk  between  them  about  the  murder  of  Fedder,  was  asked,  on 
cross-examination  by  counsel  for  the  state,  this  question :  "  I 
will  ask  you  if,  in  the  barber  shop  of  William  Profit  here  in 
Bloomington,  you  did  not  say  there  that  morning  that  you 
knew  Bill  Welch  was  the  man  that  killed  Louis  Fedder?"  To 
tills  question  the  appellant  objected,  for  the  reason  that  it  was 


452 


AMERICAN  CRIMINAL  REPORTS. 


asking  the  witness  for  an  opinion  expressed  by  him  out  of  hear- 
ing of  defendant,  and  was  not  asking  for  a  fact,  and  was  not  a 
cross-examination,  which  objection  was  overruled,  and  defend- 
ant excepted,  and  the  witness  answered,  "  I  did  not."  The 
state  then  asked  the  witness:  "And  if  you  did  not  say  there 
that  you  were  willing  to  i)et  ^250  that  liill  Welch  was  the 
guilty  man?"  To  this  question  the  appellant  again  objected, 
for  the  reason  stated.  The  objection  was  again  overruled,  and 
the  witness  answered,  "  1  did  not."  The  state  then  called 
William  Profit,  and  asked  him  the  following  question:  "State 
to  the  jury  whether  you  heard  him  [Andy  (hooper]  make  the 
remark  that  'William  Welch  or  JJill  Welch  is  the  man  who 
murdered  old  man  Keduei.  i  am  not  guessing  at  it;  I  know 
it.'  "  To  this  the  ai)i)elljint  ol>jected,  for  the  reason  that  the 
question  was  illegal  and  incompetent,  and  was  hearsay  evi- 
dence, and  was  an  effort  to  im})each  a  witness  on  irrelevant 
and  immaterial  matter,  and  that  the  question  referred  to  the 
opinion  of  an  outsi<lo  party ;  which  objection  the  court  over- 
ruled, and  appellant  excepted,  and  the  witness  answered: 
"  Yes;  he  said  that."  The  state  then  asked  the  witness  the 
following  question:  "1  will  ask  you  if  he  said  then,  at  the 
same  time  and  place,  '  I  will  bet,'  or  '  I  am  willing  to  bet,  ^l'50 
that  he  is  the  man?*  *"  To  which  question  the  appellant  again 
objected,  for  the  same  reasons,  which  objection  was  again 
overruled,  and  defendant  excepted,  and  the  witness  answered: 
"  Yes,  sir;  he  said  that."  The  same  questions  were  asked  the 
witness  Harry  Innes,  by  the  state,  to  which  the  appellant 
objected,  for  the  same  reasons.  These  rulings  of  the  court 
were  presented,  among  others,  as  causes  for  a  new  trial. 

We  know  of  no  principle  or  authority  upon  which  to  main- 
tain the  rulings  of  the  court  in  admitting  the  testimony  of 
Profit  and  Innes.  The  conversation  about  which  inquiry  was 
made  of  Coopei*  on  cross-examination  was  so  remotely,  if 
at  all,  connected  with  the  subject  of  his  direct  examination, 
and  of  the  matter  in  issue,  that  the  rule  was  put  to  its  utmost 
tension  in  allowing  the  question  to  be  asked  him,  over  the 
defendant's  objection.  Melntire  v.  Young,  6  Blackf.,  496. 
As,  however,  if  the  witness  had  admitted  that  he  made  the 
declarations  imputed  to  him  by  the  cross-examining  question, 
such  admission  miffht  have  formed  the  basis  for  further  in- 


iiMii: 


WELCH  r.  STATE. 


453 


)ut  of  hear- 
I  was  not  a 
,nd  defend- 
not."    The 
)t  say  there 
sh  was  the 
n  objected, 
jrruled,  and 
then  called 
ion:  "State 
p]  make  the 
e  man  who 
t  it ;  I  know 
on  that  the 
tiearsay  evi- 
n  irrelevant 
ferred  to  the 
court  over- 
s  answered: 
witness  the 
then,  at  the 
to  bet,  5^-2.50 
[)ellant  again 
was  agaui 
ss  answered: 
re  asked  the 
le  appellant 
of  the  court 
f  trial, 
ich  to  niain- 
testiniouy  of 
inquiry  was 
•emotely,  if 
examination, 
to  its  utmost 
him,  over  the 
Blackf.,  496. 
he  made  the 
ling  question, 
or  further  in- 


quiry as  to  the  sources  of  his  knowledge,  or  the  grounds  upon 
whicjj  lie  based  his  opinion  of  the  guilt  of  the  accused,  with  a 
view  of  driving  him  ultimately  to  an  admission  that  he  heanl 
the  alleged  confession,  we  think  it  was  within  the  discretion  of 
the  court  to  allow  the  question.  Having  denied  the  impute<l 
declarations,  Ave  think  the  state  was  bound  by  the  denial.  The 
subject  about  which  the  witness  was  inipiired  of  was  new,  and 
collateral  to  the  main  issue.  Sellers  v.  Jeiil'lus,  97  Tnd.,  430.  It 
did  not  come  within  the  rule  that  a  witness  may  be  shown  to 
have  made  statements  out  of  court  inconsistent  with  his  testi- 
mony given  upon  the  trial.  The  conversation  or  declarations 
imputed  to  him  had  no  relation,  except  by  argument  or  infer- 
ence, to  the  testimony  given  by  the  witness  on  his  examination 
in  chief.  They  were  not  contradictory  of  his  testimony  as 
given,  nor  were  they  inconsistent  with  it  so  as  to  become  the 
subject  of  an  impeachment.  1  Whart.  Ev.,  §§  558,  550;  Sellers 
V.  Jenhins,  sup7'a. 

This  case  is  complete  in  its  analogy  with  that  of  People  r. 
Siuckhousc,  49  Mich.,  70.  In  that  case  a  witness  was  examined  on 
behalf  of  the  accused,  who  was  on  trial  for  the  crime  of  arson. 
On  cross-examination  she  was  asked  if  she  had  not  said  to  cer- 
tain persons  named,  on  the  night  the  accused  was  arrested,  that 
she  always  did  suspect  that  he  did  burn  the  mill.  Having 
denied  the  imputed  conversation,  two  witnesses  were  called 
who  testified  that  she  had  so  stated.  Reversing  this  ruling, 
the  court  said : 

"The  opinion  or  suspicions  of  the  witness  out  of  court, 
although  inconsistent  with  the  conclusion  which  the  facts 
which  she  testified  to  on  the  trial  would  warrant,  cannot  be 
made  the  basis  of  an  impeachment.  This  is  so  firmly  settled 
by  the  authorities  that  the  question  cannot  be  considered  an 
open  one." 

Whether  the  matter  inquired  of  on  cross-examination,  and 
proved  by  the  state  in  imi)eachment  of  Cooper,  was  collateral 
to  the  main  inquiry  or  not,  is  determined  by  this  inquiry : 
Would  the  prosecuting  attorney  have  been  permitted  to  ititro- 
duce  it  in  evidence  as  part  of  the  state's  case?  If  he  would 
not,  it  was  collateral.  If  it  was  collateral,  it  was  not  compe- 
tent to  contradict  it.     1  Whart.  Ev.,  §  559:  George  v.  State,  \(> 


viHPPiJ 


•^.'•^ 


-> 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0    ^Ui  m 

Ui  iU    ■2.2 


1.1 


S  lii    12.0 

u 


1^        WA 


HiolDgraphic 

Sciences 

Ccjrporalion 


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1«L 


<^ 


23  WIST  MAIN  STIIIT 

WIMTIR,N.Y.  MSM 

(71«)t73-4S03 


\ 


M 


^o 


V 


5^ 


45i 


AMERICAN  CRIMINAL  REPORTS. 


Keb.,  318 ;  State  v.  Townsend,  24  N.  W.  Rep.,  536 ;  Sumner  v. 
Crawford,  45  N.  H.,  416;  3roare  v.  People,  108  111.,  484. 
In  1  Greenl.  on  Evidence,  §  449,  the  rule  is  stated  thus: 
"  And  if  a  question  is  put  to  a  witness  which  is  collateral  or 
irrelevant  to  the  issue,  his  answer  cannot  be  contradicted  by 
the  party  who  asked  the  question,  but  it  is  conclusive  against 
him." 
In  1  Starkie  on  Evidence,  §  200,  the  .author  says : 
"  It  is  here  to  be  observed  that  a  witness  is  not  to  be  cross- 
examined  as  to  any  distinct  collateral  fact  for  the  purpose  of 
afterwards  impeaching  his  testimony  by  contradicting  him." 
In  Wharton  on  Evidence,  ^  5r>',),  the  learned  author  says: 
"  In  order  to  avoid  an  interminable  multiplication  of  issues, 
it  is  a  settled  rule  of  practice  that  when  a  witness  is  cross- 
examined  on  a  matter  collateral  to  the  issue,  he  cannot,  as  to 
his  answer,  be  subsequently  contradicted  b}"^  the  party  putting 
the  question." 

The  ruling  of  the  court  in  admitting  this  evidence,  and  other 
rulings  admitting  evidence  of  like  character,  were  such  ei-rors 
as  must  rcveree  the  judgment. 

In  the  fifth  reason  assigned  for  a  new  trial  is  also  inchided 
an  alleged  error  of  the  court  in  excluding  the  evideiico  oi 
James  Kelley,  a  witness  for  a])i)ellant.  When  James  Ivolley 
was  on  the  witness  stand  the  counsel  of  appellant  asked  him 
to  state  what  he  knew  of  the  intention  of  the  defendant  to 
leave  Bloomingtou,  and  for  what  purpose,  etc.  To  this  (jues- 
tion  the  state  objected,  for  the  reason  that  it  was  hearsay. 
Counsel  for  the  defendant  stated  that  the  defendant  proposal 
to  show  that  defendant  and  this  witness  had  a  conversation  as 
to  his  going  away  to  the  Air  Line  Railroad  to  get  a  job  of 
work,  instead  of  going  away  to  avoid  a  prosecution;  that  the 
defendant  made  his  going  away  public;  and  that  he  made 
known  his  intention  and  purpose  to  five  or  six  other  witnesses, 
and  that  he  went  to  get  work,  and  got  work.  The  court  sus- 
tained the  objection,  and  appellant  excepted.  Concerning  the 
evidence  thus  proposed,  it  may  be  said  the  record  fails  to  show 
that  the  state  had  introduced  evidence  tending  to  show  that 
the  defendant  left  Bloomington  under  circumstances  whicli 
might  indicate  a  purpose  to  avoid  arrest  and  prosecution. 


PEOPLE  V.  GUIDICI. 


455 


{}■■ 


Sumner  v. 
184. 
thus : 
)llateral  or 
adicted  by 
ive  against 


;o  be  cross- 
purpose  of 
ng  him." 
or  says : 
n.  of  issues, 
less  is  cross- 
,nnot,  as  to 
irty  putting 

!e,  and  other 
such  errors 

ilso  included 
evidence  ol 
ames  Ivelley 
t  asked  liini 
defendant  to 
To  this  (jucs- 
was  hearsay. 
mt  proposal 
nversation  as 
get  a  job  of 
ion ;  that  the 
hat  be  made 
her  witnesses, 
'lie  court  sus- 
jucerning  the 
fails  to  sliow 
to  show  that 
stances  which 
[  prosecution. 


Until  some  evidence  was  introduced  by  the  state  upon  which 
a  claim  of  flight  or  evasion  of  arrest  might  have  been  based, 
the  evidence  offered  was  immaterial.  It  may  have  been  ex- 
cluded for  that  reason.  We  need  not  decide  whether,  under 
any  circumstances,  such  evidence  is  competent.  Hamilton  v. 
State,  36  Ind.,  280  (10  Am.  K.,  22);  Amtln  v.  Swank,  9  Ind., 
109;  Boone  Co.  Bank  v.  Wallace,  18  Ind.,  82. 

The  application  for  a  new  trial,  so  far  as  it  was  asked  on 
the  ground  of  newly-discovered  evidence,  need  not,  in  view  of 
the  fact  that,  for  the  reasons  already  given,  the  judgment  must 
be  reversed,  be  further  noticed.  Judgment  reversed,  with  di- 
rections to  the  clerk  to  make  the  proper  order  concerning  the 
further  custody  of  the  defendant. 


People  v.  Gumioi. 

(100  N.  Y.,  503.) 

MunoER:  Evidence  —  E,vccption  icaived  —  Reasonable  dmibt. 

1.  Deposition  bead  witiioitt  oaiECTiON,— Where  the  deposition  of  a  wit- 

ness is  taken  at  tlie  instanie  of  defendant  and  read  on  behalf  of  tlie  people 
at  tiu'  trial,  without  objeetion  on  his  part,  he  waives  his  right  to  such 
objection,  and,  a.s  no  error  upon  a  criminal  trial  can  Ije  made  availaWe 
unless  taken  on  the  trial,  the  a(hnission  of  such  evidence  cannot  be 
eonsidere<l,  nor  does  section  o20  of  the  Criminal  Code  change  the  rule. 

2.  Reasonable  doubt,— The  nidge  defined  a  reasonable  doubt  to  be  a 

"  doubt  for  which  some  good  reason  arising  from  the  evidence  can  be 
given."  Held  that,  taken  with  the  context,  there  was  nothing  to  mis- 
lead or  per[)lex  a  juror. 

N.  C.  3f()(ik,  for  ap))ollant. 

James  ]V.  liUhjaHii/,  lor  respondent. 

Dani'oktii,  J.  AVc  agree  with  the  learned  judges  of  the 
courts  below  in  the  o[)inion  that  the  facts  in  evidence  fully 
justified  the  submission  of  the  case  to  the  jury  as  one  in  which 
thev  mio-bt  find  the  defendant  imxltx  of  murder  in  the  first 
degree,  as  charged  in  the  indictment,  and  think  it  necessary  to 
consider  only  tbo.se  points  which  allege  error  in  regard  to  evi- 
dence, or  the  directions  under  which  the  evidence  was  to  be 
weighed. 


450 


AMERICAN  CRIMINAL  REPORTS. 


.r 


hi'^ 


1.  The  deposition  of  Mrs.  Daghiero,  the  widow  of  the  mur- 
dered man,  taken  on  the  3d  of  March,  1884,  on  the  application 
of  the  prisoner,  and  in  pursuance  of  the  provisions  of  the  Code 
of  Criminal  Procedure  (sections  620-635),  was  offered  in  evi- 
dence in  behalf  of  the  people ;  the  district  attorney  stating,  as 
appears  by  the  record,  "  that  he  would  read  the  same,  for  tiio 
reason  that  the  same  conditions  now  exist  to  prevent  the  per- 
sonal attendance  of  the  witness  as  existed  at  the  Lime  of 
granting  the  order  for  the  taking  of  such  examination,  and 
that  the  witness  is  unable  to  personally  attend  by  reason  of 
her  continued  sickness."  It  also  appears  that  the  defendant's 
counsel  made  no  objection  or  exception  to  the  reading  of  the 
same,  and  it  was  thereupon  road.  Errors  upon  criminal  trials 
can  be  made  available  in  this  court  only  by  exceptions  duly 
taken  on  the  trial  {People  v.  Thompson.,  41  X.  Y.,  0;  People  v. 
Caset/,  72  id.,  399;  Conitors  r.  J*i'ople,  50  id,,  240;  Brotherton  v. 
People,  75  id.,  159),  and  it  follows  that,  as  no  objection  was 
then  taken,  the  questions  now  argued  against  the  admissibility 
of  the  deposition  are  (piite  out  of  place.  But  notwithstanding 
this  doctinne  is  well  established,  tiie  learned  counsel  for  the 
appellant  contends  that  by  section  527  of  the  code,  supra,  a 
different  rule  is  enacted,  and  that  the  question  may  be  con- 
sidered in  the  same  manner  as  if  an  objection  had  been  made 
upon  the  trial.  It  was,  however,  held  otherwise  in  PeopU  v. 
Ilavey,  92  N.  Y.,  554;  People  v.  Boas,  id.,  560;  and  PeopU  v. 
D'Argencour,  95  N.  Y.,  631  {S.  C,  4  Am.  Cr.  L.,  p.  240).  Nor 
is  any  hardship  imposed  upon  the  appellant  by  the  application 
of  this  rule.  Assuming,  what,  except  for  this  purpose,  I  by  no 
means  concede,  that  there  is  any  force  in  the  objections  now- 
made  to  the  reading  of  this  deposition,  it  was  deliberately 
acquiesced  in  by  the  prisoner,  and  it  was  clearly  in  his  powei- 
Xk  waive  them.  Consent  would  not  give  the  court  jurisdiction 
nor  authorize  a  substantial  change  in  its  fundamental  mode  of 
proceeding;  that  could  be  neither  enlarged  nor  restricted. 
The  trial  must  be  by  a  jury  of  twelve,  and  not  a  less  number, 
although  the  prisoner  consent  thereto  {Canccini  Case,  18  N.  Y.. 
128),  but  ho  may  waive  his  right  to  challenge.  He  cannot  be 
compelled  to  be  a  witness  against  himself;  but  by  consenting 
to  take  the  stand  he  Avaives  the  constitutional  protection,  and 
may  be  examined  in  the  same  manner  as  any  other  witness. 


PEOPLE  V.  GUIDIOI. 


457 


the  mur- 
plicatiou 
the  Code 
1  in  evi- 
tating,  as 
3,  for  the 
D  the  pcr- 
Lime  of 
,tion,  and 
reason  of 
fendant's 
Iff  of  the 
nal  trials 
ions  duly 
People  V. 
therton  t\ 
ction  was 
nissibility 
listanding: 
si  for  the 
1,  siipra,  a 
y  be  con- 
leen  made 
People  V. 
People  V. 
140).    Nor 
pplication 
!e,  I  by  no 
•tions  now 
iliberately 
his  power 
urisdiction 
il  mode  of 
restricted. 
ss  number, 
.',18N.Y.. 
I  cannot  be 
consentin^^ 
cction,  and 
Br  witness. 


Connors  v.  People,  supra.  He  is  not  subject  to  be  twice 
put  in  jeopardy  for  the  same  offense;  but  if  judgment  is 
arrested  on  his  motion,  or  if  for  any  reason  a  new  trial  is 
granted  on  his  prayer,  he  must  submit  to  another  trial.  So 
the  jury  must  act  upon  evidence;  but  secondary,  in  place  of 
primary,  evidence  may  be  received.  Admissior.s  of  facts  may 
be  allowed ;  and  in  many  sii.iilar  particulars  consent  will  render 
valid  what  without  it  would  be  erroneous.  Cancemi  Ca^e, 
supra;  Picrson  v.  People,  79  N.  Y.,  42-1:.  So  here,  if  there 
were  no  statute  upon  the  subject,  whether  the  witness  should 
be  produced  in  court  and  there  confronted  with  the  prisoner, 
or  whether  her  deposition,  taken  at  his  instance,  should  be 
read,  might  be  left  to  his  determination  ( Webster  v.  People, 
92  N.  Y.,  422),  and  his  assent  to  the  latter  course,  having  been 
signified  by^  acquiescence,  makes  it  immaterial  to  inquire  as  to 
the  true  meaning  and  effect  of  the  statute  supra. 

2.  In  behalf  of  the  prisoner  twenty-eight  requests  to  charge 
were  submitted  to  the  court,  and,  among  others,  one  in  these 
words : 

"  The  prisoner  is  entitled  to  the  benefit  of  any  reasonable 
doubt  which  the  jury  might  entertain,  not  only  upon  the  case 
generally,  but  upon  each  and  every  specific  fact  necessary  for 
them  to  find  before  reaching  a  verdict  in  the  case ;  and  if  they 
entertain  any  such  doubt  in  respect  to  any  matter  necessary  to 
sustain  a  verdict  for  either  of  the  higher  offenses,  then  it  is 
their  duty  to  convict  of  the  lesser;  and  if  they  entertain  any 
such  doubt  on  the  whole  case,  they  must  acquit." 

In  response,  the  court  said  to  the  jury: 

'•  I  charge  you  that.  Perhaps  I  can  put  it  in  shorter  terms, 
so  that  you  can  undei-stand  it.  If  you  have  any  reasonable 
doubts  upon  any  facts  which  are  necessary  to  convict  the  de- 
fendant, he  is  entitled  to  the  benefit  of  that  doubt.  If  you 
have  any  reasonable  doubt  of  his  guilt,  he  is  entitled  to  be 
acquitted.  If  you  have  any  reasonable  doubt  of  his  guilt  of 
nmrder  in  the  first  degree,  you  cannot  convict  him  on  that 
count.  If  you  have  any  reasonable  doubt  of  his  guilt  of  mur- 
der in  the  second  degree,  you  cannot  convict  him  on  that  count ; 
or  if  you  have  any  reasonable  doubt  as  to  manslaughter  in 
either  degree,  you  cannot  convict  him  of  that,  and  he  must  he 
acquitted.     You  must  understand  what  a  reasonable  doubt  is. 


458 


AMERICAN  CRIMINAL  REPORTS. 


*;sa:. 


a  MM 


It  i3  not  a  mere  guess  or  surmise  that  the  man  may  not  be 
guilty.  It  is  such  a  doubt  as  a  reasonable  man  might  entertain 
after  a  fair  review  and  consideration  of  the  evidence, —  a  doubt 
for  which  some  good  reason  arising  from  the  evidence  can  be 
given.  When  you  find  suc'i  a  doubt  as  that,  in  a  case,  it  is 
your  duty  to  give  the  i)risoner  the  fullest  and  amplest  benelit 
of  it." 

To  all  which  defendant's  counsel,  as  the  case  states,  then  and 
thex'e  duly  excepted. 

It  is  entirely  well  settled  that  such  general  exception  is  of 
no  avail  if  any  portion  of  the  matter  be  well  stated.  Decker 
V.  Mathews,  13  N.  Y.,  ol3.  No  error  was  specifically  pointed 
out,  and  it  is  not  now  claimed  bv  the  learned  counsel  for  the 
appellant  that  all  the  propositions  laid  down  in  this  portion  of 
the  charge  are  erroneous.  The  exception,  therefore,  might 
well  be  treated  as  unavailing;  but,  having  regard  to  the  im- 
portance of  the  case,  we  have  followed  the  argument  for  the 
appellant  and  find  no  just  cause  of  complaint.  The  criticism 
is  limited  to  the  definition  given  of  a  reasonable  doubt,  and 
aimed  at  tliat  portion  where,  by  way  of  ])araphraso,  the  trial 
judge  said,  "  a  doubt  for  which  some  good  reason  arising  from 
the  evidence  can  be  given."  It  should  be  read  with  the  whole 
sentence  of  which  it  forms  a  part,  and,  so  taken,  seems  only  to 
distinguish  that  doubt  which  would  avail  ti  \)risoner  from  one 
which  is  merely  vague  and  imaginar}'.  Tiie  jury  were  not 
called  upon  to  fornmlate  and  state  their  reasoning;  but,  in 
substance,  to  view  all  the  circumstances  from  which  an  infer- 
ence was  to  be  drawn,  and  inquire  whether,  consistently  with 
the  truth  of  the  whole,  the  prisoner  might  not  be  innocent;  to 
weigh  aiid  consider  the  evidence,  and  if,  from  a  dclicicncy  of 
proof,  or  inconclusiveiioss  of  testimony,  any  material  fact  was 
not  established,  there  was  then  left  a  reasonable  doubt  arising 
from  tiie  evidence,  and  to  the  benefit  of  that  the  prisoner  was 
entitled.  "VVe  find  in  the  language  of  the  judge  nothing  to 
mislead  or  perplex  a  juror;  but  if  counsel  at  the  trial  thought 
otherwise,  the  attention  of  the  court  should  have  been  directed 
to  it.  "An  indefinable  doubt,  which  cannot  bo  stated,  with 
the  reason  upon  which  it  rests,  so  that  it  may  be  examined  and 
discussed,  can  hardly  be  considered  a  reasonable  doubt,  as  such 
an  one  would  render  the  administration  of  justice  impracticable ; 


PEOPLE  V.  BUSH. 


459 


Y  not  be 
ntertain 
a  doubt 
e  can  be 
ase,  it  is 
t  benolit 

then  and 

ion  is  of 
Decker 
r  pointed 
1  for  the 
ortion  of 
e,  might 
) the  im- 
t  for  the 
criticism 
aubt,  and 
the  trial 
5ing  from 
:he  whole 
IS  only  to 
from  one 
were  not 
j;  but,  in 
I  an  infev- 
sntly  with 
locont ;  to 
iciency  of 
1  fact  was 
bt  arisiiiff 
souer  was 
othing  to 
il  thought 
n  directed 
ated,  with 
mined  and 
bt,  as  such 
'acticablc ; 


and,  as  to  this,  it  has  not  been  too  strongly  said  'All  the 
authorities  agree.' "  3  Greenl.  Ev.  (14th  ed.),  note,  section  29. 
Many  other  propositions  are  submitted  to  us  as  ground  for  a 
new  trial.  They  have  been  examined ;  but  we  find  no  error  of 
law,  and  must  affirm  the  judgment. 

(All  concur,  except  Rapallo,  J.,  not  voting.) 


People  v.  Eush. 

(65  Cal.,  129.) 

Murder:   Evidence  — Good  character  of  witness  —  Instructions — Mutual 

combat  —  Self-defense. 

1.  Until  assailed,  rnoop  op  good  chabacterinadmissible.— Until  the 
character  of  a  witness  has  been  attacked  by  evidence  that  his  reputa- 
tion I'or  trutli,  honesty  and  integrity  is  bad,  evidence  in  proof  of  his 
good  cliaructer  is  inadmissible. 

','.  Coolixc)  time  which  reduces  murder  to  manslaughter.— The  in- 
struction that  "  when  parties,  by  mutual  understanding,  engage  in  a 
conflict  with  deadly  weaiwns.  and  death  ensues  to  either,  the  slayer  is 
guilty  of  murder,"  is  correct  and  proper,  if  the  circumstances  be  not 
such  jis  to  bring  the  case  within  the  statute  concerning  dueling. 

3.  Same. —  Whore  the  court  instructed  the  jury  as  follows:  "If  a  sutli- 

cient  time  elapses,  between  a  ([uarrel  and  the  agreement  to  fight,  to 
allow  the  blood  to  cool,  the  killing  will  be  murder; "  and  "  if,  between 
the  quarrel  and  the  mortal  stroke  given,  the  prisoner  takes  up  aiiy 
other  design  or  business  not  connected  with  the  immediate  object  of 
his  passion,  or  subservient  thereto,  it  may  be  reasonably  supposed  that 
his  attention  was  once  called  off  from  the  subject  of  the  provocation, 
and  any  subsociuent  killing  of  his  adversary,  without  other  provoca- 
tion, and  with  a  deadly  weapon,  would  be  murder," — held,  that  such 
instruction  wivs  proper,  and  was  not  a  charge  to  the  jury  on  matters  of 
fact. 

4.  An  erroneous  instruction  not  cured. —  Where  an  erroneous  instruc- 

tion was  given,  it  is  no  answer  for  the  prosecution  to  show  that,  in 
another  part  of  the  charge,  another  instruction  was  given  in  which  the 
law  wan  correc  ;ly  stated  by  the  court.  It  would  be  impossible,  in  such 
case,  to  determine  under  which  instruction  the  jury  acted. 

Appeal  from  a  judgment  of  the  Superior  Court  of  San  Diego 
County. 
The  facts  are  stated  in  the  opinion  of  the  court. 


4C0 


AMERICAN  CRIMINAL  REPORTS. 


M 


Z.  Montyomenj,  Levi  Chase,  W.  J.  Oatewood  and  T.  J.  Arnohh 
for  apjiellant. 

Attorney- Ge7ieral  Martshall  and  District-Attorney  IIunsacTcei\ 
for  respondent. 

MoKKisoN,  C.  J.  The  defendant  was  convicted  of  the  crime 
of  murder,  and.  having  appealed  to  this  court,  presents  several 
grounds  of  error,  wliich  lie  claims  were  committed  by  the  court 
below. 

1.  On  the  trial  of  the  case  one  Maud  Parsons  was  called  as 
a  witness  on  behalf  of  the  defense,  and  on  her  cross-examina- 
tion was  asked  the  following  questions: 

"  Q.  Did  you  know  of  Mr.  Bush's  going  to  shoot  Mr.  Ivy 
(the  deceased)  before  this  time, —  before  the  shooting  took 
place?    A.  No,  sir. 

"  Q.  Did  you,  about  a  week  before  that  time,  tell  Lou.  Yan- 
cey that  your  uncle  Jay  was  going  to  kill  John  Ivy.  A.  No, 
sir. 

"  Q.  You  never  told  anybody  that?    A.  No,  sir. 

"  Q.  You  never  told  her  that?    A.  No,  sir. 

"  Q.  Do  you  remember  coining  down  at  noon  about  a  week 
before  the  killing,  when  your  uncle  and  John  Ivy  were  in  the 
street,  and  when  they  were  quarreling?    A.  No,  sir. 

"  Q.  Did  you  at  that  time,  or  at  any  time,  tell  her  that  your 
uncle  Jay  was  going  to  kill  him?    A.  No,  sir. 

"  Q.  Your  uncle  never  told  you  that?    A.  No,  sir. 

"  Q.  Did  your  uncle  Jay  ever  tell  you,  at  any  time,  he  was 
going  to  kill  John  Ivy?    A.  No,  sir." 

At  a  later  stage  of  the  trial  the  following  proceedings  were 
had:  "Lou.  Yancey  was  called  as  a  w-^ness  on  behalf  of  the 
prosecution,  and  was  examined  as  follows: 

"  Q.  What  is  your  name?    A.  Lou.  Yancey. 

"  (>.  Where  do  you  live?    A.  In  Julian. 

"  Q.  Do  you  know  Maud  Parsons?  A.  Yes;  I  am  well  ac- 
quainted with  her. 

"  Q.  Do  you  remember  the  time  John  Ivy  was  killed?  A. 
Yes,  sir. 

"^.  State  if,  at  any  time  within  a  week  previous  to  that,  she 
said  anything  about  her  uncle  going  to  kill  John  Ivy." 

Objection  was  made  to  this  inquiry  on  the  twofold  ground 


PEOPLE  r.  BUSH. 


461 


irnold. 


?y', 


that  the  matter  upon  which  it  was  souy;ht  to  impeach  the  wit- 
ness was  immaterial  to  the  issues  involved  in  the  case,  and  also 
that  the  proper  foundation  had  not  been  laid  for  the  impeach- 
ment of  the  witness,  as  her  attention  had  not  been  called  to 
the  surrounding  circumstances,  as  required  by  section  2052  of 
the  Code  of  Civil  Procedure.  It  was  also  claimed  that  it  was 
not  cross-examination.  Objections  overruled  by  the  court, 
exception  taken,  and  the  examination  proceeded. 

Q.  State  what  she  said  to  you.  A.  A  week  before  the  time 
he  killed  him  Ave  went  down  town,  and  in  the  street  we  saw 
]\[r.  Bush  and  Mr.  Ivy,  and  they  seemed  to  be  kind  of  hector- 
ing or  quarreling  about  something.  AVe  went  back  to  the  school- 
house.  I  asked  her  what  the  quarrel  was  about.  '  Never 
mind,'  she  said,  '  John  Ivy  will  be  sorry  for  all  this.'  I  said, 
'  Why  ? '  She  said,  '  Because  my  uncle  Jay  says  he  always 
kept  his  word,  and  does  what  he  says.  He  says  he  will  kill 
Jo  hn  Ivy.  He  told  me  this  morning  he  was  going  to  kill  John.' 
1  said,  '  Does  he  say  that  ? '  '  Yes,'  she  said ;  '  he  always  keeps 
his  word.' " 

The  ruling  of  the  trial  court  in  admitting  the  foregoing  evi- 
dence, notwithstanding  the  objections  of  defendant's  counsel, 
is  the  first  ground  of  error  relied  upon  on  this  appeal.  We 
think  the  objection  should  have  been  sustained  and  the  evi- 
dence excluded. 

2.  The  second  assignment  is  that  the  court  erred  in  admit- 
ting evidence  on  the  part  of  the  prosecution,  in  support  of  the 
character  of  the  witness  Valentine,  "  whose  character "  (it  is 
claimed)  ^^  had  not  been  in  any  vianner  attached  hy  the  defense.''' 
By  section  2053  of  the  Code  of  Civil  Procedure  it  is  provided 
that  "  evidence  of  the  good  character  of  the  party  is  not  ad- 
missible in  a  civil  action,  7ior  of  a  witness  in  any  action^  until 
the  character  of  such  party  or  witness  has  been  impeached,  or 
unless  the  issue  involves  his  character."  See,  also,  sections 
2051  and  2052  of  the  same  code.  The  character  of  the  witness 
was  not  impeached  in  such  a  manner  as  to  authorize  the  intro- 
duction of  evidence  on  the  part  of  the  prosecution  to  sustain  it. 
It  is  only  in  cases  where  the  witness'  character  is  attacked  by 
evidence  that  his  reputation  for  truth,  honesty  and  integrity  is 
bad,  that  evidence  on  the  other  side  is  admissible. 


,*: 


462 


AMERICAN  CRIMINAL  REPORTS. 


':&'':m 


3.  The  court  gave  the  following  instruction  to  the  jury: 

"  When  parties  by  mutual  understanding  engage  in  a  conflict 
with  deadly  weapons,  and  death  ensues  to  either,  the  slayer  is 
guilty  of  murder." 

The  court  proceeds : 

"  If  a  sufliciont  time  elapses,  between  a  quarrel  and  the  agree- 
ment to  light,  to  allow  the  blood  to  cool,  the  killing  will  be 
murder.  The  law  assigns  no  limit  within  which  cooling  time 
may  take  ])lace.  Every  case  must  depend  on  its  own  circum- 
stances, but  the  time  in  which  an  ordinary  man  in  like  circum- 
stances would  have  cooled  may  be  said  to  be  the  reasonable 
time,  ff,  hotwcen  the  ijnarrel  and  the  mortal  strolce  tj'iven,  the 
prisoner  tah's  up  any  other  desufn  or  hnsiness  not  connected 
with  the  immediate  object  of  his  passion,  or  subservient  tlieroto, 
it  may  be  reasonably  supposed  that  his  attention  was  once 
called  off  from  the  subject  of  the  provocation,  and  aiiy  sid/.se- 
quent  hilling  of  his  adversary,  without  other  provocation  and 
loith  a  deadly  weapon,  would  he  m  urder.''^ 

It  is  claimed,  on  behalf  of  the  defense,  that  the  foregoing 
instruction  is  erroneous,  for  two  reasons :  First,  that  an  en- 
counter and  killing,  under  such  circumstances,  comes  witliin 
the  statute  of  dueling;  that  the  act  is  therefore  punishable 
under  that  statute,  and  therefore  does  not  constitute  murder; 
and,  secondly,  that  the  instruction  charges  the  jury  upon  mat- 
ters of  fact. 

Independent  of  the  statute  concerning  dueling,  it  has  been 
held  that  "  when  parties  by  mutual  understanding  engage  in  a 
conflict  with  deadly  weapons  and  death  ensues  to  either,  tiie 
slayer  is  guilty  of  murder,"  and  we  do  not  think  there  is  any- 
thing in  the  circumstances  attending  the  killing  in  this  case  to 
take  it  out  of  the  general  rule.  State  v.  Underwood,  37  Mo., 
225;  1  Bish.  Crim.  Law,  §  870;  Lambert'' a  Case,  9  Leigh,  605. 
We  are  therefore  of  the  opinion  that  the  first  objection  to  the 
charge  cannot  be  sustained. 

In  the  next  place  it  is  claimed  that  the  court  invaded  the 
province  of  the  jury  by  charging  them  upon  a  matter  of  fact: 

"  If  between  the  quarrel  and  the  killing  there  is  a  space  or 
interval  of  time  sufficient  for  an  ordinary  man  to  cool,  that  may 
be  deemed  a  reasonable  time  within  the  meaninir  of  the  rule  on 


PEOPLE  V.  BUSH. 


463 


iry: 

I  conflict 
slayer  is 


le  agree- 
f  will  be 
ing  time 
circum- 
)  circum- 
asonable 
fo'f'ti,  ihe 
onncctcd 
t  thereto, 
vas  once 
7iy  n'thse- 
t'nni  and 


oregoing 
t  an  en- 
bs  within 
unislmhle 
murder; 
ipon  mat- 
has  been 
jrajre  in  a 
ither,  tlie 
re  is  any- 
lis  case  to 
/,  37  Mo., 
3igh,  605. 
ion  to  the 

vaded  the 
p  of  fact: 
I  space  or 
,  tluit  may 
he  rule  on 


the  subject.  And  if  between  the  quarrel  and  the  infliction  of 
the  mortal  wound  the  mind  of  the  defendant  is  directed  to  and 
is  taken  up  by  any  other  subject  not  in  any  manner  connected 
with  the  cause  of  the  quarrel,  it  may  be  reasonably  supposed 
tliat  his  attention  was  called  off  from  the  subject  of  the  provo- 
cation, and  any  subse(]uent  killing  of  his  adversary  without 
other  provocation  and  with  a  deadly  weapon  would  be  murder." 

The  instruction  seems  to  have  been  copied  by  the  learned 
judge  from  the  case  of  Com.  r.  Green,  I  Ashm.,  289,  as  the  lan- 
guage is  almost  identical  in  tl-.e  two  cases.  To  the  same  effect  is 
the  rule  laid  down  by  Mr.  Wharton  in  liis  work  on  American 
Criminal  Law,  pp.  181,  182.  See,  also,  State  v.  MeCants,  1 
Speer  (S.  C),  357;  Retjaia.  v.  Fisher,  8  Car.  &  P.,  182;  State  v. 
Shemore,  7  Jones,  200.  On  the  autliority  of  the  foregoing 
cases  the  instruction  complained  of  seems  to  be  correct,  and  is 
not  obnoxious  to  the  second  objection  made  by  the  lefense. 
Another,  and  the  last  point  made  by  the  appellant,  is  upon  the 
following  portion  of  the  charge:  "If  the  defendant  himself 
brought  on  tlie  light,  and  went  into  it  armed,  he  cannot  justify 
killing  his  adversary."  We  think  the  foregoing  is  not  a  cor- 
rect statement  of  tlie  law  concerning  jiisti liable  homicide.  By 
section  197  of  the  Penal  Code  it  is  declaimed  that  homicide  is 
justifiable  in  certain  cases,  the  third  subdivision  of  the  section 
reading  as  follows: 

"When  committed  in  the  lawful  defense  of  such  person,  or 
a  wife,  husband,  .  .  .  but  such  person,  or  the  person  in 
whose  behalf  the  defense  was  made,  if  he  Avas  the  assailant,  or 
engaged  in  mortal  combat,  must  really  and  in  good  faith  have 
endeavored  to  decline  any  further  struggle  before  the  homicide 
was  committed." 

The  charge  entirely  overlooks  the  above  provision  of  the 
Penal  Code,  and  was  therefore  erroneous.  It  is  not  true  that 
a  ]>arty  cannot  justify  killing  another  simply  because  he  is  the 
assailant.  If  he,  in  good  faith,  endeavors  to  decline  any  fur- 
ther struggle  before  the  act  of  homicide  is  committed,  he 
may,  although  he  was  the  assailant,  jnstify  the  killing.  In  the 
case  of  The  People  v.  Simons,  60  Cal.,  72,  this  court  held  that 
"  even  if  the  defendant  had  been  the  assailant,  if  he  had  really 
and  in  good  faith  endeavored  to  decline  any  further  struggle 
before  the  homicide  was  committed,  the  killing  might  be  justi- 


464 


AMERICAN  CRIMINAL  REPORTS. 


m 


U 


1 ;.. .'  ;V 


m.^     v'-} 


%''}'l': 


''-,}'.t. 


fied  in  self-defense."  Other  cases  might  be  cited  to  the  same 
effect ;  and  it  is  no  answer  to  the  objection  that  an  erroneous 
instruction  was  given,  for  the  prosecution  to  show  that  in  an- 
other part  of  the  charge  another  instruction  was  given  in  whicli 
the  law  was  correctly  state<l  by  the  court.  In  such  a  case  it 
would  bo  impossible  to  determine  under  which  of  the  two  con- 
tradictory instructions  the  jury  acted.  As  was  said  by  this 
court  in  the  case  of  People  v.  Wong  Ah  Ngoic,  54  Cal.,  151,  "an 
erroneous  instruction  it,  not  cured  by  a  correct  statement  of  the 
law  in  another  part  of  the  charge."  See,  also,  People  v.  Camp- 
Mi,  30  Cal.,  312. 

Wo  think  there  was  evidence  tending  to  bring  the  defend- 
ant's case  within  the  section  of  the  code  last  referred  to;  and 
whether  he  was  the  aggressor,  and  if  so  he  did  in  good  faith 
try  to  avoid  any  furtlior  <lilticulty  witii  the  deceased  before  the 
homicide  wa/  coinmitte<l,  sliould  have  been  left  to  the  jury,  by 
a  j)roper  instruction  on  the  law  applicable  to  the  case.  For 
this  erroneous  instruction,  and  the  admission  of  improper  evi- 
dence, the  judgment  must  be  reversed  and  the  cause  remanded 
for  a  new  trial.     It  is  so  ordered. 

aVfcIvKK,  J.,  and  Tuoun ton,  J.,  concurred  in  the  opinion  of 
(/h.  J.  Morrison;  McKinstkv,  J.,  concurred  in  the  judgment. 


\:ii     ■  f' 


Ross,  J.,  concurred  in  the  judgment  upon  the  ground  last 
considered  in  the  opinion. 

SuAKPSTEiN,  J.  I  concur  in  the  judgment.  Evidence  of  the 
good  character  of  a  witness  is  not  admissible  until  his  char- 
acter has  been  impeached.  Code  Civil  Proc,  §  2053.  This 
doubtless  refers  to  impeachment  "  by  evidence  that  his  general 
reputation  for  truth,  honesty  and  integrity  is  bad."  Id.,  §  2051 . 
When  witnesses  contradict  each  other,  the  character  of  the  one 
is  as  nmch  impeached  as  that  of  the  other;  and  there  would 
be  as  good  ground  for  admitting  evidence  of  the  good  char- 
acter of  tlie  one  as  of  the  other.  And  where  a  witness  is  im- 
peached by  evidence  of  his  having  previously  made  statements 
inconsistent  with  his  testimony,  it  amounts  to  nothing  beyond 
contradictory  evidence,  lie  must  be  asked  if  he  made  such 
statements,  and  if  he  answers  that  he  did  not,  evidence  that 


STATE  V.  WALKER. 


465 


the  same 
erroneous 
lat  in  an- 
L  in  whicli 
a  case  it 
I  two  con- 
(1  by  tliis 
,151,  "an 
ent  of  tho 
J  V.  Camp- 

le  dofcnd- 
id  to ;  and 
Tood  faith 
before  tlie 
le  jury,  by 
3ase.  For 
iroper  evi- 
remanded 


jpinion  of 
judgment. 

round  last 


nee  of  the 
.  his  char- 
053.  Tliis 
lis  general 
Id.,  §2051. 
of  the  one 
here  would 
good  char- 
iness is  im- 
statements 
ing  beyond 
made  such 
dence  that 


he  did  is  admissible ;  if  he  answers  that  he  did,  that  is  the  end 
of  the  matter. 

I  think  the  instructions  referred  to  in  the  principal  opinion 
were  erroneous.    On  other  points  £  express  no  opinion. 


State  v.  Walker. 

(77  Me.,  488.) 

Murder  :  Evidence  —  Ilea  gestce. 

1,  Declar/itions  —  Res  GEST^. — The  declarations  of  a  party  made  whOe 

doing  an  act,  the  nature,  object  or  motive  of  which  ia  the  subject  of 
inquiry,  are  admissible  in  evidence  as  a  part  of  the  res  gestce,  if  they 
tend  to  elucidate  or  give  character  to  the  act  itself. 

2.  Exclusion  op  proper  testimony.—  In  a  trial  for  murder  by  shooting, 

a  witness  for  the  respondent  testified  to  the  situation  of  the  parties 
and  the  appearance  of  the  respondent  at  the  moment  the  shot  was 
fired ;  but  his  testimony  as  tu  the  respondent's  declaration  accompany- 
ing the  act  was  excluded.  Hel<l,  that  such  declaration  was  admissible, 
and,  being  excluded,  the  prosumirtion  is  that  such  exclusion  was  det- 
rimental to  the  interest  of  the  party  in  whose  behalf  it  was  offered. 

This  was  an  indictment  for  murder.  The  verdict  was  mur- 
der in  the  second  degree,  and  the  respondent  alleged  excep- 
tions to  the  exclusion  of  testimony  as  stated  in  the  opinion. 

Orville  D.  Baker,  attorney -general,  for  the  state. 
WaZt(m  i&  Walton  and  J.  J.  Parlin,  for  defendant. 

Foster,  J.  The  prisoner  was  indicted  for  murder,  and  the 
jury  returned  a  verdict  of  murder  in  the  second  degree.  The 
case  is  before  the  law  court  on  exceptions.  At  the  time  of 
the  shooting,  which  was  not  far  from  9  o'clock  in  the  evening, 
the  deceased  was  in  front  of  the  respondent's  house,  either 
upon  the  piazza  or  in  the  yard  very  near  to  it.  A  party  of 
eighteen  persons  had  assembled  .for  the  alleged  purpose,  as 
claimed  by  the  prosecution,  of  serenading  the  respondent,  who 
had  been  recently  married,  and  upon  entering  his  grounds  the 
party  commenced  blowing  horns,  tiring  guns,  ringing  bells  and 
making  other  noises,  both  in  the  yard  and  on  the  piazza  of  the 
house.  The  respondent,  with  his  wife  and  father,  and  two 
Vol.  V— 30 


466 


AMERICAN  CRIMINAL  REPORTS. 


i 


other  persons,  was  in  the  house  at  the  time.  All  had  retired 
for  the  night,  and  no  lights  were  burning.  It  was  claimed  by 
the  respondent  and  his  witnei,3es  that  after  these  demonstra- 
tions had  continued  at  intervals  for  nearly  an  hour,  some  of 
the  party  outside  made  an  assault  upon  the  door  and  tried  to 
burst  it  in,  threatening  to  take  the  respondent's  wife  out  into 
the  yard,  and  making  other  threats  against  the  respondent  and 
his  wife.  The  witnesses  for  the  government  deny  that  any  as- 
sault was  made  upon  the  house,  or  that  such  threats  were  used, 
or  any  provocation  given  for  violence  to  be  used  against  them 
by  the  persons  in  the  house.  The  testimony  of  the  respondent 
and  his  wife  was  that  upon  the  first  discharge  of  the  guns  the 
wife  became  unconscious,  and  so  remained  when  the  respond- 
ent left  her  in  the  bedroom  shortly  before  he  fired.  The  re- 
spondent stated  that  he  took  his  pistol  from  the  place  whore 
he  had  been  in  the  habit  of  keeping  it  on  the  table  in  his  bed- 
room, and,  placing  it  in  his  hip  jwcket,  passed  from  the  bed- 
room through  the  kitchen,  through  the  entry  and  across  to  the 
further  side  of  the  wash-room,  and  fired  it  first  out  of  the  win- 
dow in  an  upward  course  for  the  ]>urpose  of  frightening  away 
the  party  outside;  that,  returning  towards  his  bedroom,  as  he 
passed  through  tlie  entry,  hearing  an  assault  made  at  that  in- 
stant upon  the  house,  accompanied  by  threats  of  violence 
towards  himself  and  his  wife,  whom  he  then  su|)p()sed  to  be 
lying  insensible  in  her  bed,  under  the  excitement  of  the  mo- 
ment incident  to  such  assault  and  throats,  he  discharged  liis 
pistol  through  the  side  light,  but  claimed  it  was  not  his  i)is- 
tol  that  did  the  killing;  and  he  furthermore  claimed  that,  if 
it  was  his  pistol  that  did  the  killing,  the  excitement  incident 
to  the  circumstances  under  which  he  was  placed  at  the  moment 
of  discharging  it  was  such  as  to  justify  the  act;  and  if  not  a 
justification,  that  he  should  then  be  adjudged  only  guilty  of 
manslaughter.  While,  upon  the  other  hand,  the  government's 
position  was  that  in  any  view  of  the  case  the  fatal  shot  was 
fired  under  such  circumstances  of  motive,  purpose  and  intent 
as  constituted  murder  on  the  part  of  this  resiwmdent. 

It  appeared  in  evidence  that  Leonard  FT.  Wnlkor,  father  of 
respondent,  met  him  in  the  entry  just  at  tlui  moment  the  re- 
spondent discharged  his  pistol  through  the  side  light.  In 
answer  to  the  question,  "  What,  if  anything,  did  you  find  or 


ifc^  ^: 


STATE  V.  WALKER. 


467 


1 


ad  retired 
3laimed  by 
iemonstra- 
ir,  some  of 
nd  tried  to 
e  out  into 
indent  and 
hat  any  as- 
were  used, 
;ainst  them 
respondent 
le  guns  the 
le  respond- 
d.    The  re- 
place whore 
1  in  his  Itt-'il- 
m  the  bed- 
cross  to  the 
of  the  win- 
ening  away 
I  room,  as  he 
!  at  that  in- 
of   violence 
posed  to  be 

of  the  mo- 
icharged  his 
not  his  pis- 
med  that,  if 
ont  incident 
the  moment 
and  if  not  a 
nly  guilty  of 
rovernment's 
,tal  shot  was 

and  intent 
jnt. 

cor,  father  of 
ment  the  re- 
le  light.    In 

you  find  or 


hear?"  propounded  by  the  respondent's  counsel,  he  said:  "  At 
that  time  they  were  rattling  the  door;  they  were  trying  to 
get  into  the  ell  door,  and  when  I  got  to  the  entry  door  I  met 
Frank  there,  and  they  were  trying  at  that  time  to  get  into  the 
door,  and  Frank  seemed  to  be  frightened,  and  I  put  my  arm 
on  him  and  he  was  all  of  a  tremble,  and  Frank  spoke  and  — ." 
At  this  point  objection  was  interposed  by  the  counsel  of  the 
state  to  any  statement  by  the  witness  as  to  what  the  respond- 
ent said,  and  the  declaration  was  excluded ;  to  which  excep- 
tion w^as  taken  by  the  respondent's  counsel. 

From  the  materially  different  standpoints  taken  by  the  gov- 
ernment and  the  respondent  in  relation  to  the  circumstances 
under  which  the  fatal  shot  was  fired,  it  became  important  to 
ascertain  what  those  circumstances  were;  why  the  shot  was 
tired;  in  what  condition  of  mind  the  respondent  was  at  the 
time  he  discharged  his  pistol;  whether  the  act  was  done  with 
deliberation,  or  under  such  sudden  excitement  or  fear,  passion 
or  provocation,  as  would  reduce  the  offense  of  killing  from 
murder  to  numslaughter.  It  was  the  province  of  the  jury  to 
determine  these  questions  from  the  evidence  before  them.  It 
lay  in  their  power  to  fiad  the  respondent  guilty  of  murder  in 
the  first  or  second  degree,  or  they  might  lind  him  guilty  of 
iiuinslaughter  only.  The  motive  with  which  the  act  of  killing 
was  done  would  necessarily  be  an  important  factor  in  govern- 
ing their  determination  into  which  of  the  three  grades  of  homi- 
cide this  crime  would  fall.  The  principal  fact  was  in  evidence, 
and  was  material  in  tiie  proper  investigation  of  the  case.  AVere 
the  declarations  of  the  respondent  accompanying  the  act  ad- 
missible in  evidence  ?  We  are  clearly  of  tiie  opinion  they  were, 
and  should  have  been  admitted  in  evidence  as  a  part  of  the 
/'('«  (jedtd.  "  "Where  evidence  of  an  act  done  by  a  party  is  ad- 
missible, his  declarations  made  at  the  time,  having  a  tendency  to 
elucidate  or  give  character  to  the  act,  and  which  may  derive  a 
degree  of  credit  from  the  act  itself,  are  also  admissible  as  a 
part  of  the  res  <jeda\'^  Scs.sions  v.  Little,  9  N.  II.,  271.  If  the 
declaration  is  made  by  a  party  while  doing  an  act,  tlie  nature, 
object  or  motive  of  whic'  is  tlie  subject  of  inquiry  and  serves 
to  explain  it,  then  such  declaration  is  admissible  in  evidence. 
And  it  is  generally  in  this  class  of  cases,  where  either  the  nat- 
ure, object  or  motive  of  the  act  is  material,  that  this  rule 


4GS 


AMERICAN  CRIMINAL  REPORTS. 


m 


receives  its  broadest  application.  The  declaration  becomes  im- 
portant as  forming  a  part  of  the  transaction  itself,  on  the 
ground  that  what  is  said  at  the  time  affords  a  legitimate  means 
of  ascertaining  the  character  of  the  act,  and  as  a  part  of  the 
oil Dumstances  to  be  given  in  evidence  with  the  principal  fact. 
As  a  learned  author  has  expressed  it,  such  declarations  are  ad- 
mitted, "  not  to  prove  their  own  truth,  but  to  exhibit  the  atti- 
tude of  the  parties,  and  to  show  the  transaction  in  all  its 
aspects."  2  Whart.  Ev.,  §  1102,  Nor  are  such  declarations  said 
to  be  received  as  hearsay,  but  they  are  distinguished  from  it  by 
their  connection  with  the  principal  fact  under  investigation, 
and  which  they  serve  to  elucidate  and  explain. 

In  the  case  before  us  the  answer  given  by  the  fatlier  of  the 
respondent,  so  far  as  it  had  proceeded  at  the  time  when  the  ob- 
jection was  raised,  related  to  the  circumstances  immediately 
surrounding  a  principal  fact,  which  was  tlicn  the  subject  of  in- 
vestigation,—  the  firing  of  the  fatal  shot.  Tiie  witness  de- 
scribed the  situation  of  the  parties  at  the  moment  the  shot  was 
fired,  and  the  appearance  of  the  respondent  as  frightened  and 
trembling;  but  when  he  attempted  to  state  the  respondent's 
declaration  which  accompanied  tlie  act  it  was  excluded.  Such 
declaration  was  only  a  verbal  act,  and  as  competent  as  other 
testimony.  Its  weight  was  for  the  jury.  Insuranee  Co,  v. 
Moslet/,  8  Wall.,  408.  Being  excluded,  the  presumption  is  that 
such  exclusion  was  detrimental  to  the  interest  of  the  party  in 
whose  behalf  it  was  offered.  People  v.  WlUiams,  18  Cal.,  187. 
What  bearing  it  might  have  had  on  the  minds  of  the  jury  had 
the  evidence  been  admitted  is  not  a  question  for  our  considera- 
tion. The  respondent  was  on  trial  for  his  life.  He  was  entitled 
to  tlie  benefit  of  whatever  legitimate  evidence  he  could  pro- 
duce. It  becomes  unnecessary  to  consider  the  remaining  ex- 
ceptions.   Exceptions  sustained.     New  trial  granted. 

Petkhs,  C.  J.,  Walton,  Danfobth,  Libbey  and  Emery,  J.T., 
concurred. 


It'-iM 


I' 


ones  im- 
,  on  the 
te  means 
rt  of  the 
ipal  fact. 
IS  are  ad- 
,  the  atti- 
in  all  its 
tions  said 
Tom  it  by 
stigation, 

ler  of  the 
i3n  the  ob- 
mediately 
iject  of  iu- 
itness  de- 
3  shot  was 
itcned  and 
s[)ondont's 
cd.     Such 
it  as  other 
nee  Co.  V. 
ion  is  that 
le  party  in 
5  Cal.,  187. 
e  jury  had 

cohsidera- 
:as  entitle<l 

could  pro- 
iiaining  ex- 
1. 

Cmery,  J  J., 


DENNIS  V.  STATE.  469 

Dennis  v.  State. 

(103  Ind.,  142.) 

Mubder:  Indictment — Supplemental  motion  for  new  trial — Newly  dis- 
covered evidence. 

1.  Not  necessakt  to  allege  that  accused  held  club.—  An  indictment 

for  murder,  by  killing  with  a  club,  is  not  bad  for  not  averring  that  the 
accused  held  the  club  in  his  hands. 

2.  Not  necessary  to  charge  assault  and  battery. —  In  an  indictment 

charging  murder  in  the  first  degree,  it  is  unnecessary  to  allege  .in 
assault  and  battery  on  the  body  of  the  deceased  in  formal  tei*ms. 

8.  Bill  of  exceptions. —  A  bill  of  exceptions,  when  duly  signed  by  the 
judge,  may  be  sufficient,  even  though  it  has  no  formal  caption. 

4.  New  trial  —  Supplemental  motion.— The  trial  court  may  entertain  a 
supplemental  motion  for  a  new  trial  at  the  term  the  final  judgment  is 
pronounced,  even  if  filed  after  such  judgment,  in  cases  where  the 
motion  is  based  on  causes  discovered  after  rendition  of  the  judgment 

6.  Evidence  newly  discovered.—  Where  there  is  newly  discovered  evi- 
dence which  consists  of  statements  made  by  the  witness  upon  whose 
testimony  the  accused  was  convicted,  and  such  statements  effectually 
tend  to  withdraw  such  testimony,  a  now  trial  ought  to  be  granted. 

6.  Impeaching  and  cumulative  evidence.—  Evidence  which  destroys  or 
renders  illegible  the  testimony  on  which  a  conviction  was  had  is  not 
merely  cumulative,  nor  is  it  simply  impeaching  evidence. 

Appeal  from  Montgomery  Circuit  Court. 

W.  W.  Thornton,  D.  TF.  Doty,  J.  M.  Setter  and  J.  W.  Wright, 
for  appellant. 

A.  B.  Andermn,  prosecuting  attorney,  O.  TF.  Paul,  J.  E. 
Humphries,  31.  I).  White  and  TF.  S.  Moffitt,  for  t'  .8  state. 

HowK,  J.  On  the  23d  day  of  February,  1885,  one  John  W. 
Coffey  and  the  appellant,  James  M.  Dennis,  were  jointly  in- 
dicted in  the  court  below  for  the  murder  of  one  James  AlcMuUen. 
The  indictment  was  in  two  counts.  The  defendants  severed 
in  their  defense,  and  the  appellant,  Dennis,  having  pleaded  to 
the  indictment  that  he  was  not  guilty  as  therein  charged,  was 
awarded  a  separate  trial.  The  issues  joined  as  to  appellant 
were  tried  by  a  jury,  and  a  verdict  was  returned  on  the  22d 
day  of  April,  1885,  in  substance  as  follows:  "We,  the  jury, 
find  the  defendant,  James  Dennis,  guilty  of  murder  in  the  first 
degree,  as  charged  in  the  first  count  of  the  indictment,  and  fix 
his  punishment  at  death." 


i70 


AMERICAN  CRIMINAL  REPORTS. 


ri.'- 


Over  the  appellant's  motion  for  a  venire  de  novo,  for  a  new 
trial,  in  arrest  of  judgment,  and  for  his  discharge  from  custody, 
on  the  13th  day  of  May,  1885,  the  court  adjudged,  on  the  ver- 
dict, that  he  suffer  death,  and  from  this  judgment  he  has  ap- 
pealed to  this  court.  Afterwards,  on  the  25th  day  of  June, 
1885,  before  the  expiration  of  the  time  allowed  appellant  in 
which  to  prepare  and  file  his  bill  of  exce})tions,  he  appeare<l  in 
ojjen  court,  at  the  same  term  thereof,  and  filed  what  is  called 
his  supplemental  motion  for  a  new  trial,  supported  by  affida- 
vits. Upon  a  hearing  had  of  this  motion  it  was  overruled  by 
the  court,  and  appellant's  exceptions  were  duly  saved  to  this 
puling. 

In  this  court  appellant  has  assigned  a  large  number  of  errors 
on  the  record  of  this  cause,  and  the  questions  thereby  presented 
have  been  ably  and  exhaustively  discussed  by  counsel  on  both 
sides,  both  orally  and  in  written  and  printed  briefs.  The  view 
we  are  constrained,  by  our  sense  of  judicial  duty,  to  take  of 
this  case  will  render  it  unnecessary  for  us  to  pass  upon  all  the 
questions  discussed  by  counsel,  but  some  of  those  questions  we 
will  consider  and  decide. 

It  is  claimed  on  behalf  of  appellant  that  the  trial  court  erred 
in  overruling  his  motion  to  quash  each  count  of  the  indictment. 
In  the  state  of  the  record  it  is  only  necessary  for  us  to  consider 
the  question  of  the  sufficiency  of  the  first  count  of  the  indict- 
ment, as  apixjllant  was  found  guilty  solely  of  the  offense  charged 
in  that  count,  and  judgment  of  acquittal  of  the  offense  charged 
in  the  second  count  was  ren<lered  by  the  court. 

The  first  count  charged,  in  substance,  that  Coffey  and  the 
appellant,  "on  the  7th  day  of  January,  A.  D.  1885,  at  said 
county  and  state  aforesaid,  did  then  and  there  unlawfully,  felo- 
nioush',  purposely,  and  with  premeditated  malice,  kill  and 
murder  one  James  McMuUen,  by  then  and  there  feloniously, 
purposely,  and  with  premeditated  malice,  striking,  bruisin«r  and 
mortally  wounding  the  said  James  McMullen  with  a  eliil>,  of 
which  mortal  wound  the  said  James  McMullen  then  and  there 
died." 

The  first  objection  urged  to  this  count  of  the  indictment  is 
that  it  is  not  charged  therein  that  the  defendants,  or  either  of 
them,  then  and  there  had  or  held  the  club  ''  in  their  hands," 
with  which  it  is  alleged  they  killed  and  murdered  McMullen, 


DENNIS  V.  STATE. 


471 


for  a  new 
1  custody, 
in  the  ver- 
lie  has  ap- 
r  of  June, 
•pcllant  in 
)|)eave<l  in 
Lt  is  called 

by  affida- 
erruled  by 

ed  to  this 

ir  of  errors 
presented 
el  on  both 
The  view 
to  take  of 
)on  all  the 
lestions  we 

30urt  erred 
indictment, 
to  consider 
the  indict- 
ise  charged 
ISO  charged 

ey  and  the 
185,  at  said 
,vfully,  felo- 
e,  kill  and 
feloniously, 
(ruisin^f  and 
h  a  clult,  of 
n  and  there 

idictment  is 

or  either  of 

leir  hands," 

McMuUen, 


"by  striking,  bruising  and  mortally  wounding"  him.  There 
is  no  substance,  we  think,  in  this  objection.  It  is  true  that 
such  particularity  of  statement  is  found  in  the  old  common-law 
forms  of  indictments,  but  it  is  not  required,  we  think,  under 
our  Criminal  Code.  Dukes  v.  State,  11  Ind.,  557.  When  we 
are  convinced  that  the  defendants  might  have  killed  and  mur- 
dered McMullen  by  striking,  bruising  and  mortally  wounding 
him  with  a  club  without  holding  the  club  in  their  hands,  it  is 
possible,  though  hardly  probable,  that  we  may  change  our  opin- 
ion on  this  question.  As  at  present  advised,  we  must  hold  that 
appellant's  tiret  objection  to  the  first  count  of  the  indictment 
is  not  well  taken. 

The  only  other  objection  pointed  out  to  the  first  count  by 
appellant's  counsel  is  that  it  omits  to  charge  the  defendants,  in 
formal  and  express  terms,  with  the  commission  of  an  assault, 
or  an  assault  and  battery,  on  the  body  of  James  McMullen. 
It  may  be  conceded  that  such  a  formal  charge  can  be  found  in 
the  old  commor-law  precedents  of  an  indictment  for  murder. 
In  this  state,  however,  this  court  has  given  its  sanction  to  the 
form  of  an  indictment  for  murder  very  similar  to  the  one  under 
consideration,  and  which  contained  no  express  charge  either  of 
an  assault  or  an  assault  and  battery.  Cordell  v.  /State,  22  Ind., 
1.  In  the  opinion  of  the  court,  in  the  case  cited,  the  indictment 
is  copied  at  length,  and  is  held  to  be  sufficient.  To  the  same 
effect,  substantially,  are  the  following  cases:  Veatch  v.  State, 
56  Ind.,  581  (2(5  Am.  R.,  44);  Jilelerfi  v.  State,  id.,  336;  Wood  v. 
State,  92  Ind.,  260.  In  the  case  in  hand,  the  firet  count  of  the 
indictment  charged  the  defendants,  in  plain  and  unequivocal 
language,  which  couUl  not  be  misunderstood  by  any  man  of 
common  understanding,  with  the  intentional  and  unlawful  kill- 
ing of  James  McMullen,  with  premeditated  malice,  and  we 
think  it  is  sufficient. 

The  important  and  controlling  questions  in  this  case  arise,  as 
it  seems  to  us,  under  the  alleged  errors  of  the  court  in  over- 
ruling the  original  and  supplemental  motions  of  the  appellant 
for  a  new  trial.  It  is  insisted,  however,  by  counsel  for  the 
state,  that  this  court  cannot  consider  or  decide  any  of  the  ques- 
tions arising  under  either  of  such  motions  for  a  new  trial,  be- 
cause, they  say,  the  evidence  given  on  '.he  original  trial  is  not 
made  part  of  the  record  by  a  bill  of  exceptions.    The  objection 


472 


AMERICAN  CRIMINAL  REPORTS. 


& 


'M  L 


urged  to  the  bill  of  exceptions  containing  such  evidence  is  that 
it  has  no  caption,  nor  preliminary  statement  of  any  kind,  to 
indicate  that  what  follows  was  the  evidence  given  on  the  trial 
of  the  cause.  The  evidence  was  taken  down  by  the  official 
reporter  of  the  court,  and  the  long-hand  manuscript  of  such 
evidence,  certified  by  such  reporter  in  conformity  with  the 
statute,  appears  in  the  transcript  before  us  without  prefatory 
statement  of  any  kind,  except  an  index  of  the  names  of  the 
several  witnesses  examined,  and  of  the  page  on  which  the  tes- 
timony of  each  witness  began.  Immediately  preceding  this 
manuscript  and  index  in  the  transcript  is  the  following  memo- 
randum of  the  clerk:  "Be  it  further  remembered,  tb  t  after- 
wards, to  wit,  on  the  18th  da}'  of  July,  1885,  the  said  defendant, 
James  Dennis,  by  his  said  attorneys,  filed  in  the  otfiee  of  the 
clerk  of  said  Montgomery  circuit  court  the  following  bill  of 
exceptions,  namely."  Immediately  following  the  certificate 
of  the  official  reporter,  annexed  to  his  long-hand  manuscript  of 
the  evidence,  is  the  following  statement,  signed  by  the  judge  of 
the  trial  court,  namely :  "  And  this  was  all  the  evidence  given 
in  the  cause.  And  the  said  defendant,  James  Dennis,  now 
tenders  this,  his  bill  of  exceptions,  and  prays  that  the  same  may 
be  signed,  sealed  and  made  a  part  of  the  record,  which  is  ac- 
cordingly done  this  17th  day  of  July,  A.  D.  1885."  Then  fol- 
lows the  certificate  of  the  clerk,  under  his  hand  and  the  seal  of 
the  court,  to  the  effect  "  that  the  above  and  foregoing  is  the 
original  long-hand  manuscript  of  the  evidence  in  the  case  oi: 
The  State  of  Indiana  v.  James  Dennis,  filed  in  my  office  on  the 
18th  day  of  July,  1885,  and  that  the  same  was  at  that  time  in- 
corporated into  a  bill  of  exceptions,  as  the  same  now  apjiears." 

Upon  the  foregoing  statement  of  what  is  shown  by  the  tran- 
script, upon  the  point  under  consideration,  we  are  of  opinion 
that  it  sufficiently  appears  that  the  long-hand  manuscript  of 
the  evidence  was  properly  incorporated  in  a  bill  of  exceptions, 
and  that  the  evidence  given  on  the  trial  of  the  cause  is,  there- 
fore, a  ])art  of  the  record.  K.  S.  1881,  §§  629, 1410;  Galvin  v. 
State  ex  rel.,  56  Ind.,  51. 

Something  has  been  said  in  argument  by  counsel  for  the  state 
to  the  eff'ect  that  the  filing  of  appellant's  supplemental  motion 
for  a  new  trial  after  final  judgment  was  not  authorized  by  any 
law  or  rule  of  practice.    Such  motion  was  filed  during  the 


ice  is  that 
ly  kind,  to 
a  the  trial 
he  official 
pt  of  such 
with  the 
prefatory 
les  of  the 
ch  the  tos- 
this 


eding 


ing"  memo- 
tb  t  after- 
defendant, 
fice  of  the 
ng  bill  of 
certificate 
nuscript  of 
le  judge  of 
once  given 
ennis,  now 
!  same  may 
rhich  is  ac- 

Then  fol- 
the  seal  of 
)ing  is  the 
the  case  of: 
Bee  on  the 
lat  time  in- 
V  apjiears." 
)y  the  tran- 
of  opinion 
nuscript  of 
exceptions, 
le  is,  there- 

Galvin  v. 

or  the  state 
ital  motion 
ized  by  any 
during  the 


DENNIS  V.  STATE. 


473 


same  term  of  court  at  which  final  judgment  was  rendered,  and 
such  motion  was  entertained  by  the  court,  and,  after  a  hearing 
thereon  upon  affidavits  and  oral  evidence,  was  overruled  by 
the  court, —  all  without  objection  or  exception  on  the  part  of 
the  state,  so  far  as  wo  can  lind.  At  all  events,  the  action  of  the 
court  in  permitting  appellant  to  file  such  motion  is  not  called 
in  question  here  by  the  state  by  any  assignment  of  cross-error. 
The  question,  we  think,  is  not  properly  presented  for  our  decis- 
ion. But  if  it  were,  we  would  be  of  opinion  that  the  question 
is  one  which  addresses  itself  to  the  sound  discretion  of  the  trial 
court;  and  that,  in  any  case  of  felony,  involving  the  life  or 
liberty  of  the  defendant,  it  would  be  an  absolute  abuse  of  such 
discretion  to  refuse  to  entertain  a  supplemental  motion  for  a 
new  trial,  founded  upon  matters  occurring  after  final  judgment, 
bearing  strongly  upon  the  guilt  or  innocence  of  the  defendant, 
and  reasonably  supported  by  the  affidavits  therewith  filed.  In 
this  case,  the  supplemental  motion  for  a  new  trial,  and  the  affi- 
davits and  oral  evidence  introduced  on  the  hearing  thereof,  are 
incorporated  in  a  separate  bill  of  exceptions,  which  is  properly 
in  the  record.  There  is  no  error  in  the  action  of  the  court  in 
entertaining  appellant's  supplemental  motion  of  which  the  state 
can  be  heard  to  complain. 

Having  now  disposed  of  the  state's  objections  to  the  record 
of  this  cause,  we  pass  to  the  consideration  of  the  appellant's 
case,  as  the  same  is  presented  in  the  transcript  before  us,  upon 
tlie  evidence  introduced  as  well  after  as  before  final  judgment. 

James  McMullen  and  his  wife,  in  the  early  part  of  January, 
18S5,  were  the  only  occupants  of  a  small  farm-house,  of  two 
rooms,  remote  from  any  city,  town  or  village,  in  the  county  of 
Montgomery.  Early  in  the  morning  of  the  Stli  day  of  Janu- 
ary, 1885,  it  was  discovered  that  during  the  pi-eceding  night 
this  farm-house  had  been  consumed  by  fire.  In  the  ashes  and 
embers  of  the  burned  house  there  were  foun  J  in  the  east  room 
the  skeleton  and  remains  of  James  McMuUer ,  anc'  the  skeleton 
and  remains  of  his  wife  in  the  west  room.  The  indications 
were  that  both  of  them  had  been  murdered ;  McMullen,  before 
he  had  prepared  to  retire  for  the  night,  and  his  wife,  after  she 
had  disrobed  herself  of  outside  garments  preparatory  to  her 
retiring,  and  that  the  house  had  been  partially  robbed  of  its 
contents  before  it  had  been  set  on  fire.    Of  course,  the  entire 


474 


AMERICAN  CRIMINAL  REPORTS. 


W 


neighborhood  was  at  once  aroused,  and  steps  were  promptly 
taken  to  discover  the  perpetrator  of  the  atrocious  crime.  Al- 
most immediiitely  suspicion  pointed  to  John  "W.  Coffey,  the  co- 
defendant  of  the  appellant  in  the  indictment  in  this  case,  as  a 
guilty  actor  in  the  murder  of  the  McMullens,  and  in  the  felo- 
nious burning  of  their  little  home.  Coffey  was  promptly  ar- 
rested, and  as  promptly  confessed  that  he,  and  he  alone,  was 
guilty  of  the  murder  of  tlie  McMullens,  and  that  he,  and  he 
alone,  had  committed  the  bodies  of  his  murdered  victims  to 
the  flames  by  setting  on  fire  their  dwelling-house. 

"Within  a  week  after  the  murder  of  the  McMullens,  at  the 
coroner's  inquest  upon  their  remains,  Coffey  was  examined 
under  oath,  us  a  witness,  by  and  before  the  coroner  of  Mont- 
gomery county.  His  testimony  was  reduced  to  writing,  in  a 
narrative  form ;  and  "  after  it  was  written  it  was  read  over  to 
him,  and  he  was  asked  if  that  was  correct,  and  he  said  it  was. 
He  was  asked  if  there  was  anything  more  he  wished  to  say, 
and  he  said  not  that  he  knew  of."  Coffey  then  subscribed  his 
name,  in  his  own  proper  hand,  to  the  written  narrative  of  his 
te.stimony  as  taken  by  the  coroner.  This  written  narrative  of 
Coffey's  testimony  was  offered  by  appellant  and  admitted  in 
evidence,  witliout  objection  by  tiie  state,  on  the  trial  of  this 
cause,  and  is  properly  in  the  record.  This  written  narrative 
may  properly  be  called  Coffey's  first  confession,  made  within 
four  days  after  the  murder  of  the  ]y[cMullens,  when,  it  may  be 
supposed,  es'ery  act  and  circumstance  of  the  horrible  crime 
Avas  fresh  in  his  recollection.  Tlie  narrative  is  entirely  too 
long  to  be  copied  in  this  opinion,  but  wo  may  say,  geneially, 
that  it  gives  in  detail  every  particular  of  the  double  murder  lie 
had  committed,  of  his  searcli  for  money  and  other  pLuider,  and 
of  his  setting  fire  to  the  house  wherein  were  tlie  bodies  of  the 
murdered  IVfcMullens.  In  this  narrative  (/ofl'ey  says:  "  ^I'o 
one  was  connected  with  me  in  the  affair.  I  was  alone,  and  no 
one  knew  mv  intentions.  When  I  left  .lohn  Fritz's  house  in 
the  evening,  I  went  on  purpose  to  McMullen's  to  do  what  I 
did.  It  came  on  me  all  of  a  sudden  at  Fritz's  house.  My  pur- 
pose was  to  get  money." 

When  Coffev  made  this  confession  before  the  coroner,  and  it 
became  generally  known,  there  were  many  persons  who  be- 
lieved, or  professed  to  believe,  that  he  alone  did  not  commit 


DENNIS  V.  STATE. 


476 


promptly 
rime.  Al- 
ey,  the  co- 
case,  as  a 
II  the  felo- 
omptly  ar- 
alone,  was 
he,  and  he 
victims  to 

ens,  at  the 
examined 
r  of  Mont- 
riting,  in  a 
ad  over  to 
said  it  was. 
led  to  say, 
jscribed  his 
itive  of  his 
larrative  of 
idmitted  in 
rial  of  this 
n  narrative 
iiade  within 
1,  it  may  be 
rible  crime 
mtirely  too 
',  generally, 
B  murder  he 
)Kindcr,  and 
odies  of  the 


says: 


No 


lone,  and  no 
k's  house  in 
0  do  wluit  1 
le.    My  pur- 

roner,  and  it 
)ns  who  be- 
not  commit 


the  murder  of  the  McMullens,  but  that  he  must  have  had  ac- 
complices, or  have  been  aided  and  abetted  by  others  in  the 
commission  of  the  crime.  This  is  abundantly  shown  by  Coffey's 
own  testimony  on  the  trial  of  this  cause.  These  persons  dili- 
gently pressed  Coffey  to  make  a  further  confession  and  to  tell 
who  helped  him  in  the  commission  of  the  crime,  and  sugges- 
tions were  made  to  him  of  this  one  or  that  one,  and,  among 
others,  of  Dennis,  the  appellant,  with  inquiries  as  to  whether 
or  not  the  person  named  was  not  with  him  when  the  crimes 
Avere  committed.  All  this  was  done  notwithstanding  the  fact 
that  in  his  testimony  before  the  coroner  Coffey  had  solemnly 
declared,  under  the  sanction  of  his  oath,  that  no  one  was  con- 
nected with  him  in  the  affair,  and  that  he  was  alone  and  no 
one  knew  his  intentions.  Under  such  jiressure,  and  with  such 
suggestions,  (Coffey  yielded  in  about  ten  days,  and  made  what 
is  called  his  second  confession,  implicating  the  appellant,  Dennis, 
and  making  him  the  principal  in  the  murders  and  arson  com- 
mitted, while  Coffey  himself  is  made  to  play  only  a  secondary 
part  in  the  terrible  tragedy. 

After  th's  second  confession  was  made  by  Coffey,  the  indict- 
ment was  returned  in  this  case  against  him  and  the  api)ellant 
jointh'.  As  we  have  seen,  the  appellant,  Dennis,  was  awarded 
a  separate  trial,  and  upon  such  trial  a  verdict  was  returned 
fnuling  him  guilty  of  murder  in  the  first  degree,  and  assessing 
his  })unishment  at  death,  and  judgment  was  rendered  accord- 
ingly. It  is  insisted  very  earnestly  by  appellant's  counsel  that 
the  verdict  of  the  jury  is  not  sustained  by  the  evidence;  but, 
in  the  view  we  take  of  this  case,  it  is  not  necessary  for  us  to 
consider  or  decide  Uiis  question.  On  the  trial  the  ])rincipal 
witness  for  the  state,  and  against  appellant,  was  John  W". 
Coffey,  who  testified  in  the  main  in  accordance  with  his  second 
confession,  that  he  and  appellant  committed  the  murders  of 
the  McMullens,  and  the  arson  of  their  home,  but  that  appel- 
lant was  the  instigator  and  principal  actor  in  the  conmiission 
of  the  crimes,  while  he  (Coffey)  was  chiefly  a  passive  looker-on. 
It  is  to  be  observed  that  Coffey  is  the  only  witness  who  claims 
or  admits  that  he  has  any  personal  knowledge  of  the  commis- 
sion of  the  murder  of  the  McMullens. 

From  our  examination  of  the  record  beforo  us,  we  feel  justi- 
fied in  saving  that  the  verdict  of  guilty  against  appellant  is, 


8^  . 


<  '       I 


•      -4 


I:'- 


4:% 


AMERICAN  CRIMINAL  REPORIU 


and  mast  be,  rested  on  the  evidence  of  John  "W.  CoflFey,  and 
that  if  Coffey's  evidence  be  eliminated  or  obliterated  from  the 
record,  there  is  no  case  left  against  the  appellant  for  the  mur- 
der of  James  McMuUen. 

This  brings  us  to  the  consideration  of  the  supplemental  mo- 
tion of  the  appellant  for  a  new  trial,  and  of  the  evidence  in- 
troduced upon  the  hearing  of  that  motion.  This  evidence 
chiefly  consists  of  what  may  be  termed  the  third  confession  of 
John  W.  Coflfey.  This  confession,  in  its  details,  is  widely  dif- 
ferent from  either  of  his  previous  confessions,  and  from  hit,  evi- 
dence given  before  the  court  and  jury  on  the  trial  of  this  cause. 
In  this  third  confession,  he  says  in  substance  that  there  were 
five  persons  in  all  who  went  to  the  home  of  the  ]\IcMullens,  for 
the  purpose  of  robbery  and  murder,  on  the  night  of  January  7, 
1885,  namely,  himself  and  ap|)ellant,  Dennis,  JVIonday  Rankin, 
John  Curtis  and  the  old  man  Kankin;  that  when  they  got  to 
the  house,  he,  Coffey,  stood  at  the  gate  and  kept  watch ;  that 
old  man  Eankin  killed  the  ]\Ic Mullens  by  four  shots  from  a 
navy  revolver;  that  after  the  McMuUens  were  thus  killed,  they 
all  joined  in  searching  the  house,  old  man  Rankin  finding  piOO 
in  an  old  trunk ;  that  they  bundled  up  feather  beds  and  clothes 
in  three  bundles,  which  they  carried  away  with  them;  and 
that  afterwards,  Monday  Rankin  and  John  Curtis  returned  to 
the  house  and  set  it  on  fire.  There  is  more  of  this  third  con- 
fession, but  we  have  set  out  enough  of  it  to  show  its  utter  in- 
consistency with  the  previous  confessions  of  Coffey,  and  with 
his  testimony  on  the  trial  of  this  cause.  The  evidence  in  re- 
gard to  his  third  confession  is  uncontradicted  by  any  testimony 
offered  by  the  state. 

It  is  claimed,  however,  on  behalf  of  the  state,  that  the  evi- 
dence of  the  third  confession  is  either  cumulative  or  impeach- 
ing, and  that  for  evidence  of  either  kind  the  rule  is  that  a  new 
trial  will  not  be  granted.  Doubtless  the  rule  of  practice  is  cor- 
rectly stated.  But  the  evidence  we  are  now  considering  is  not 
cumulative  in  any  ])roper  sense,  because  its  tendency  will  be  to 
obliterate  or  destroy  the  previous  evidence  of  John  "W.  Coffey. 
The  evidence  of  the  third  confession  is  something  more  than 
impeaching  evidence,  because,  if  believed  by  the  jury,  its  tend- 
ency will  be  to  defeat  a  verdict  for  the  state  on  the  indict- 
ment in  this  case.    The  materiality  of  the  evidence  of  the  third 


offey,  and 
I  from  the 
r  the  mur- 

lental  mo- 
iridence  in- 
5  evidence 
ifession  of 
ividely  dif- 
om  hisevi- 
this  cause, 
there  were 
[uUens,  for 
January  7, 
ly  Rankin, 
hey  got  to 
atch;  that 
ots  from  a 
killed,  they 
nding  $800 
and  clothes 
them;  and 
returned  to 
5  third  cen- 
ts utter  in- 
T,  and  with 
lence  in  re- 
r  testimony 

lat  the  evi- 
)r  impeach- 
that  a  new 
ctice  is  cor- 
ering  is  not 
Y  will  be  to 
W.  Coffey, 
more  than 
fv,  its  tend- 
the  indictr 
of  the  third 


BEAN  V.  THE  STATE. 


477 


confession  cannot  be  doubted  or  denied,  and  it  is  impossible  for 
the  courts  to  tell  how  this  third  confess'on,  in  connection  with 
Coffey's  previous  confessions,  might  af^ct  the  jury;  and,  in 
such  a  case,  we  understand  the  rule  io  be  that  a  new  trial 
should  always  be  granted.  Especially  should  this  rule  prevail 
in  our  state,  where,  by  the  fundamental  law,  it  is  expressly 
declared  that  "  in  all  criminal  cases  whatever  the  jury  shall 
have  the  right  to  determine  the  law  and  the  facts."  K.  S. 
1881,  §  64;  a  Grab,  cfe  W.  New  Trials,  pp.  1043,  1044;  Lindley 
V.  State,  11  Tex.  Ct.  Apj).,  283;  Greene  v.  State,  17  Fla.,  GOO. 

By  his  third  confession,  Coffey  says,  in  substance  and  effect, 
that  he  had  perjured  himself  in  each  of  his  previous  confes- 
sions, and  in  his  testimony  on  the  trial  of  this  cause.  We  are 
met,  therefore,  with  this  question:  Ought  we  to  permit  the 
appellant,  who  has  been  convicted  upon  confessedly  false  and 
perjured  testimony,  to  suffer  the  extreme  penalty  of  death? 
With  a  just  sense,  we  hope,  of  our  official  duty,  we  answer 
this  question  in  the  negative. 

The  court  erred,  we  think,  in  overruling  the  supplemental 
motion  for  a  new  trial.  The  judgment  is  reversed  and  the 
cause  remanded,  with  instructions  to  sustain  the  supplemental 
motion  for  a  new  trial. 

Note.— See,  also,  Keenan  v.  The  People,  104  111.,  385;  S.  C,  4  Am.  Crim. 
B.,  434,  and  note. 


Bean  v.  The  State. 
(17  Texas  Ct.  App.,  60.) 


MUKDEB : 


Indictment  —  Confessions  —  Jtiry  —  Cliallenge  to   the  array  — 
Principal  and  accessory. 


2. 


Sufficiency  op  indictment. —  It  is  not  essential  to  the  validity  of  an 
indictment  for  murder  that  it  should  allege  that  the  killing  was  "  un- 
lawfully done;"  nor  that  the  defendant  was  "  a  person  of  sound  mem- 
ory and  discretion ; "  nor  that  the  deceased  was  "a  reasonable  creature 
in  being." 

Confession  of  accused.—  Under  the  law  of  this  state,  the  confession 
of  an  accused  is  admissible  in  evidence  against  him,  when,  in  connec- 
tion with  his  confession,  he  makes  a  statement  of  facts  and  circum- 
stances found  to  be  true,  and  which  conduce  to  establish  his  guilt. 


■J : ' 


478 


AMERICAN  CKIMINAL  REPORTS. 


W- 


r 

IT' 

r 


8.  POLUNO  THE  JURY.—  In  polling  the  jury  after  verdict,  the  defendant  is 
entitled  to  no  nioro  than  a  categorical  answer  from  eat^h  juror  to  the 
qucHtion:  "  Ih  that  your  verdict?"  In  this  cane  the  accused  wua 
charged  an  a,  principal.  The  verdict,  affirmed  by  eacli  juror  on  Vicing 
polled,  found  him  "guilty  of  murder  in  the  flrst  degree  as  charged  in 
the  intlictment."  The  defense  proposed  to  usk  each  juror  if  he  intended 
to  flnil  the  accused  guilty  as  a  principal  or  as  an  accomplice.  Hdil, 
that  the  court  projierly  refused  to  permit  such  examination  of  tlio 
jurors. 

4.  Challenqe  to  the  array.— Article  624  of  the  Code  of  Criminal  Pro- 
cedure enumerati«  the  only  grounds  uiK)n  which  a  challenge  to  tliu 
array  of  jurors  can  Ixf  predicated.  It  apjwars  in  this  case  that  the  de- 
fense n'fused  to  accept  tlu'  j)ro|M)sition  of  the  district  attorney  to  excuse 
the  jurors  summoned  by  the  objectionable  officer,  and  that  he  did  not 
exhaust  his  peremptory  challenges  in  the  formation  of  the  jury.  Ilclif, 
that  for  such  additional  reasons,  the  trial  court  properly  overruled  the 
defendant's  challenge  to  the  array. 

6.  ACCOMPMCE  AND  PRINCIPAL.— Evidence  showing  aoaccused  to  be  guilty 
as  an  accomplice  to  murder  will  not  support  his  conviction  as  a  prin- 
cipal. The  distinction  between  u  principal  offender  and  an  airom- 
plice  is  stated  as  fol!>ws:  The  acts  constituting  an  accomplice 
are  auxiliary  only,  all  of  wliich  may  l»e  and  are  performed  by  liiui 
anterior  and  as  inducements  to  the  crime  nlmut  to  be  conmiittcd; 
whereas  a  principal  ofTentler  not  only  may  i)erform  some  antecedent 
act  in  furtherance  of  the  conunission  of  the  crime,  but,  when  it  is  actu- 
ally committed,  in  doing  his  puit  of  the  work  assigned  him  in  connec- 
tion with  the  plan  and  in  furtherance  of  the  common  purpose,  whether 
he  Ih'  present  where  the  main  fact  is  to  be  accomplished  or  not.  In 
other  words,  if  the  parties  acted  together  in  the  commission  of  the 
offense  they  are  principals.  If  they  agreed  to  commit  the  offense  to- 
gether, but  did  not  act  together  in  its  commission,  the  one  who  actually 
committed  it  is  the  principiU,  while  the  one  who  was  not  present  at  the 
commission,  and  who  was  not  in  any  way  aiding  therein,  as  by  keej)- 
ing  watch  or  by  sectiring  the  safety  or  concealment  of  the  jirincipal, 
would  be  an  accomplice.  To  constitute  a  principal  the  offender  must 
either  l»e  present  where  the  crime  is  committed,  or  he  must  do  some 
act  during  the  time  when  the  offense  is  being  conunitted  which  con- 
nects him  with  the  acts  of  commission  in  some  of  the  ways  named  in 
the  statute. 


Appeal  from  the  District  Court  of  Gregg.  Tried  below 
before  the  Hon.  A.  J.  Booty.  (On  exchange  with  the  Hon.  F. 
J.  McCord.) 

Taylor  tfe  Morrison  and  7?.  C  DeGrc^enreid,  for  the  appel- 
lant. 
J.  H.  Burts^  assistant  attorney-general,  for  the  state 


'4 


■*?£ 


BEAN  *•.  THE  STATE. 


179 


defendant  is 
juror  to  the 
accused  wiui 
ror  on  Vx-iiig 
IS  charged  in 
f  he  intemlud 
plice.  Hrld, 
ation  of  tho 

>iininal  Pro- 
llongc  to  thu 
s  that  the  de- 
n*\v  to  fxcuse 
[it  he  did  not 
!  jury.  HiUl. 
overruled  the 

>d  to  be  K"''ty 
;ion  as  a  prin- 
id  an  accom- 
II    accouiiilite 
iriued  by  him 
e  coiuniitled; 
IP  anteci'(U'iit 
hen  it  is  actu- 
lim  in  connec- 
•|H)se,  wliothtT 
(l  or  not.    In 
lission  of  the 
the  offense  to- 
i  who  actititlly 
present  at  the 
n,  as  by  ket'i)- 
tlie  principal, 
offender  must 
must  do  some 
L'd  wliich  c(ni- 
ays  named  in 


'ried  below 
the  Hon.  F. 


»r  the  appel- 
itate 


Wii-Lsox,  JriHiE.  I.  It  was  not  necessary  to  state  in  the  iu- 
dictment  that  tlie  killing  was  "unlawfully"  done.  Thompson 
V.  The  State,  36  Texas,  326.  Nor  was  it  necessary  to  allege  that 
the  defendant  was  "  a  person  of  sound  memory  and  discretion," 
nor  that  the  deceased  was  "  a  reasonable  creature  in  being.'' 
According  to  repeated  decisions,  the  indictment  in  this  case  is 
in  all  particulars  a  good  one.  Oyd^^n  v.  The  State,  15  Texas  Ct. 
App.,  454;  Moare  v.  The  State,  id.,  1;  Drye  v.  The  State,  14 
Texas  Ct.  App.,  185;  Bohannon  v.  The  State,  id.,  271;  Walker 
V.  The  State,  id.,  609;  Dtvi/er  v.  The  State,  12  Texas  Ct.  App., 
535;  Petevmn  v.  The  State,  id.,  650,  and  authorities  cited  in 
said  cases. 

II.  There  was  no  error  in  admitting  in  evidence  the  confes- 
sion of  the  defendant.  In  connection  with  such  confession  he 
made  a  statement  of  facts  and  circumstances  which  were  found 
to  be  true,  and  which  conduced  to  establish  his  guilt.  By  means 
of  his  statements,  the  gun  with  which  the  murder  was  com- 
mitted was  found  at  the  place  where  he  stated  he  had  secreted 
it.  Code  Crim.  Proc,  750;  liuutabi  v.  The  State,  15  Texas  Ct. 
App.,  485 ;  Welter  v.  The  State,  16  Texas  Ct.  App.,  200. 

III.  The  verdict  of  the  jury  found  the  defendant  "guilty  of 
murder  in  the  lirst  degree  as  charged  in  the  indictment,"  etc. 
At  the  request  of  the  defendant  the  jury  was  [)olled;  the  ver- 
dict was  read  aloud  to  each  juror,  and  each  juror  was  asked  if 
it  was  his  verdict,  and  each  distinctl}'  answered  that  it  was. 
Defendant  proposed  to  ask  the  jurors  if  they  intended  to  find 
the  defendant  guilty  as  a  principal  or  as  an  accomplice.  This 
was  not  allowed  by  the  court.  We  perceive  no  error  in  the 
action  of  the  court  in  polling  the  jury;  but  think  it  was  in 
strict  accordance  with  the  statute.  Code  Crim.  Proc,  art.  710. 
It  was  expressly  stated  in  the  verdict  that  the  defendant  was 
found  guilty  of  murder  in  the  first  degree,  ai<  charged  in  the 
mdk'tment,  and  he  was  charged  in  the  indictment  as  a  prin- 
cipal, and  not  as  an  accomplice.  When  the  jurors  answered 
that  this  was  their  verdict,  it  is  to  be  presumed  that  they  un- 
derstood the  meaning  of  the  same.  It  was  never  intended,  we 
think,  in  polling  a  jury,  to  permit  the  jurors  to  be  interrogated 
further  than  to  ask  each  of  them  the  direct  question,  "  Is  that 
your  verdict  ? "  If  he  answer  in  the  affirmative,  his  answer  is 
conclusive,  and  further  inquiry  is  not  permissible.    If  the  rule 


w 

480 


AMERICAN  CRIMINAL  REPORTS. 


were  otherwise,  each  juror  might  be  subjected  to  a  searching 
examination  with  a  view  to  showing  that  he  had  been  mistaken 
in  the  verdict  he  had  rendered  and  solemnly  announced  to  be 
his  verdict.  Such  a  practice  would  be  unreasonable  and  detri- 
mental to  the  ends  of  justice. 

IT.  Defendant's  challenge  to  the  array  of  jurors  summoned 
PS  salesman  was  properly  overruled,  because  it  was  not  such  a 
challenge  as  is  warranted  by  the  law.  Code  Crim.  Proc,  art. 
624.  It  further  appears  that  the  district  attorney  proposed  to 
excuse  the  persons  summoned  as  jurors  by  the  objectionable  offi- 
cer, but  that  the  defendant  declined  to  agree  to  this.  It  further 
appears  that  the  defendant  did  not  exhaust  his  peremptory  chal- 
lenges in  the  formation  of  the  jury.  He  had  six  peremptory 
challenges  remaining  when  the  jury  was  completed.  Woodard 
V.  The  State,  9  Texas  Ct.  App.,  412;  Cavitt  v.  The  State,  15 
Texas  Ct.  App.,  190;  Zum  v.  The  State,  11  Texas  Ct.  App.. 
483;  Logyhifi  v.  The  State,  12  Texas  Ct.  App.,  65. 

V.  An  issue  raised  by  the  evidence  in  the  case  is  whether,  if 
guilty  of  the  murder,  the  defendant  was  guilty  as  a,  principal 
or  as  an  accomplice.  Being  indicted  as  a  principal,  it  is  well 
settled  that  if  he  was  guilty  as  an  accomplice,  but  not  as  a 
principal,  he  could  not  be  convicted  legally  under  this  indict- 
ment. Truitt  V.  The  State,  8  Texas  Ct.  App.,  148;  McKeen  i\ 
The  State,  7  Texas  Ct.  App.,  631;  Sims  v.  The  State,  10  Texas 
Ct.  App.,  131.  It  is  earnestly  and  ably  insisted  by  counsel 
for  defendant  that  the  learned  judge  who  presided  at  the  trial 
of  this  case  failed  to  instruct  the  jury  fully  and  correctly  upon 
jhis  issue,  but,  on  the  contrary,  misdirected  tliem  in  his  charge. 

That  our  views  with  reference  to  this  subject  may  be  mado 
more  intelligible,  we  will  here  insert  those  portions  of  the 
charge  which  relate  to  the  law  of  principals  and  accomplices. 
The  jury  are  first  instructed  as  follows  :  "  You  are  instructed 
that  all  persons  are  principals  who  are  guilty  of  acting 
togetlier  in  the  commission  of  an  offense;  and  principals, 
whether  jointly  or  separately  indicted,  may  he  legally  prose- 
cuted and  convicted  as  such,  provided  the  evidence  adduced 
against  each  one  clearlv  and  satisfactorilv  oslahlishos  tiie  ifuiit 
of  each.  Where  an  otl'ense  has  been  committed,  the  true 
criterion  for  determining  who  are  princij)als  is,  F)i<l  the  parties 
act  together  in  the  commission  of  the  offense?    Was  the  act 


BEAN  r.  THE  STATE. 


481 


searching 

mistaken 

iced  to  be 

and  detri- 

lummoned 
not  such  a 
Proc,  art. 
roposed  to 
Dnable  offi- 

It  further 

ptory  chal- 

eremptory 

Woodard 

3  State^  15 

Ct.  App.. 

whether,  if 
a  principal 
i,  it  is  well 
it  not  as  a 
this  indict- 
MeKeen  v. 

10  Texas 
jy  counsel 
at  the  trial 
rectly  upon 
his  charge, 
iiy  be  made 
ons  of  the 
ccomplices. 
B  instructed 

of    acting 

principals, 
pilly  prose- 
icc  adduced 
es  the  guilt 
I,   the   true 

the  parties 
Vas  the  act 


committed  in  pursuance  of  a  common  intent,  and  in  pursuance 
of  a  previously  formed  design,  in  which  the  minds  of  both 
united  and  concurred  ?  If  so,  then  the  law  is  that  both  are 
alike  guilty,  provided  the  offense  was  actually  committed 
during  the  existence  and  in  execution  of  the  common  design 
and  mtcnt  of  both,  whether  in  point  of  fact  both  were  actually 
bodily  present  on  the  ground  while  the  offense  actually  took 
place,  or  not."  This  charge  is  a  literal  copy  of  the  charge 
given  in  Scales  v.  The  State,  7  Texas  Ct.  App.,  301,  and  also  in 
Cook  V.  The  State,  14  Texas  Ct.  App.,  96,  and  approved  by  this 
court. 

In  the  last  cited  case  {Cook  v.  The  State),  the  distinction 
between  principals  and  accomplices  was  very  carefully  consid- 
ered, and  more  thoroughly  and  definitely  explained  than  in 
previous  decisions.  We  quote  from  the  opinion  in  that  case 
as  follows:  "  We  are  of  opinion  that  the  proper  distinction 
between  these  two  characters  of  offenders  is  this:  The  acts 
constituting  an  accomplice  are  auxiliary  only,  all  of  which 
may  be,  and  are,  performed  by  him,  anterior  and  as  induce- 
ments to  the  crime  about  to  be  committed,  whilst  the  princi- 
pal offender  not  only  may  perform  some  antecedent  act  in 
furtherance  of  the  commission  of  the  crime,  but,  when  it  is 
actually  committed,  h  ilohuj  hh  part  of  the  loork  assigned  him 
in  connection  with  the  ])lan  and  furtherance  of  the  common 
purpose,  whether  he  bo  ])resent  where  the  main  fact  is  to  be 
accomplished  or  not.  AVhon  the  offense  is  committed  by  the 
perpetration  of  dilforent  parts  which  constitute  one  entire 
Aviiole,  it  h  not  necessary  that  the  offenders  should  be  in  fact 
together  at  the  perpetration  of  the  offense  to  render  them 
liable  as  principals.  In  other  words,  an  acconijilice,  under  our 
statute,  is  one  who  has  cottq^leted  hh  ofense  before  the  crime  ia 
acfualli/  committed,  and  whose  liability  attaches  after  its  com- 
mission by  virtue  of  his  previous  acts  in  bringing  it  about 
through  the  agency  of  or  in  connection  with  third  parties. 
The  principal  offender  acts  his  ])art  individually,  in  further- 
ance of  Sim\  daring  the  consummation  of  the  crime."  In  the 
subsequent  case  of  O'Neal  v.  The  State,  14  Texas  Ct.  App., 
582,  the  foregoing  distinction  was  cited  and  approved. 

Wc  must  confess  that,  to  our  minds,  the  distinction  between 
these  two  characters  of  offenders  is  often  shadowy  and  indis- 
VOL.  V  — 31 


MV'  ■' 


4S2 


AMERICAN  CRIMINAL  REPORTS. 


tiiict.  It  is  as  clearly  drawn  ia  Cook's  case  as  it  is  possiljlo 
pei'haps  to  draw  it.  The  dividing  line  between  the  two  is  the 
commoncemcnt  of  the  commission  of  the  principal  offense.  If 
the  parties  acted  together  in  the  comfniss{o7i  of  the  offense  they 
are  principals.  If  they  agreed  to  commit  the  offense  together, 
but  did  not  act  together  in  its  commission,  the  one  who  actuidhj 
committed  it  is  the  principal,  while  the  other,  who  was  not 
present  at  the  commission,  and  who  was  not  in  any  way  aiding 
in  its  commission,  as  by  keeping  watch,  or  by  securing  the  safety 
or  concealment  of  the  principal,  would  be  an  accomplice.  To 
constitute  a  jrrincijyal,  the  offender  must  either  be  present 
where  the  crime  is  committed,  or  ho  must  do  some  act  during 
the  time  when  the  offense  is  being  committed  which  connects 
him  with  the  act  of  commission  in  some  of  the  ways  named  in 
the  statute.  Where  the  acts  committed  occur  prior  to  the  com- 
mission of  the  principal  offense,  or  suhsequent  thereto,  and  are 
independent  of,  and  disconnected  with,  the  actual  commission 
of  the  princii)al  offense,  and  no  act  is  done  by  the  party  during 
the  commission  of  the  principal  offense  in  aid  thereof,  sucii 
party  is  not  a  principal  offender,  but  is  an  accomplice  or  an  ac- 
cessory according  to  the  facts.  AVe  think  the  cliarge  of  the 
court  which  we  have  quoted,  while  not  as  full  and  explanatory 
of  the  distinction  between  principals  and  accomplices  as  is  tlio 
opinion  of  Presiding  Judge  White  in  C(>ol'  v.  Tlia  State,  svpnu 
is  nevertheless  substantially  and  practically  sulRcient,  and  it 
was  not  incumbent  upon  the  court  to  instruct  the  jury  more 
particularly  and  elaborately  upon  this  (piestion. 

In  a  subsequent  part  of  the  charge,  where  the  learned  judge 
applies  the  law  to  the  evidence,  the  jury  are  instructed  as  fol- 
lows: "If  you  believe  from  the  evidence  in  this  cause  that, 
prior  to  the  killing  of  the  deceased,  Charles  Stevens,  it  was 
agreed,  understood  and  determined,  by  and  between  the  de- 
fendant Ed.  Bean  and  one  Anion  Stevens,  that  the  latter  should 
kill  Charles  Stevens,  and  that  it  was  further  agreed,  understood 
and  determined  that  the  defendant  IJean  should  procure  a  gun, 
with  which  Amon  should  kill  the  deceased,  Charles  Stevens. 
and  that,  in  pursuance  of  this  design,  the  said  defendant  did 
procure  a  gun  and  place  it  in  the  hands  of  Amon  Stevens,  or 
place  it  whore  the  said  Amon  was  to  and  did  get  the  said  gun. 
and  that,  in  pursuance  of  the  agreement  so  formed  between 


BEAN  r.  THE  STATE. 


483 


is  possible 
5  two  is  tlie 
offense.  If 
)ffense  tliov 
30  togetlier, 
'ho  at't>nt//i/ 
ho  was  not 

way  aiding 
S  the  safety 
n pi  ice.    To 

be  present 
3  act  during 
ch  connects 
y's  n.amed  iu 
•  to  the  coni- 
eto,  and  are 

mrty  during 
liereof,  sucli 
lice  or  an  ac- 
arge  of  tlio 
explanatory 
ces  as  is  tlii' 
Sfafe,  fiiqn'(h 
lent,  and  it 
e  jury  more 

;arned  judge 
uctcd  as  t'ol- 
causc  that, 
evens,  it  was 
I'cen  the  de- 
latter  should 
1,  understood 
rocure  a  gun, 
.rles  Stevens, 
efendant  did 
n  Stevens,  or 
the  said  gun, 
ned  between 


them  —  defendant  and  said  Amon  —  the  latter,  in  the  county 
and  state  aforesaid,  and  prior  to  the  23d  day  of  November, 
1883,  did,  with  express  malice  as  defined  to  you  hereinbefore, 
shoot  with  a  gun  and  tliereby  kill  the  deceased,  Charles  Stev- 
ens, and  that  this  killing  was  done  during  the  existence  and  in 
the  execution  of  the  common  design  of  said  Amon  Stevens 
and  defendant  (if  any  such  common  design  existed),  that  the 
said  Amon  should  kill  the  deceased,  then  the  defendant  would 
be  guilty  of  murder  in  the  first  degree,  whether  he  were  act- 
ually and  bodily  present  at  the  time  and  place  of  the  killing 
or  not,  and  if  you  so  believe  you  will  so  find."  As  we  under- 
stand this  charge,  and  as  we  understand  the  distinction  be- 
tween principals  and  accomplices,  the  state  of  facts  pro'ented 
in  the  charge  would  constitute  the  defendant  an  accomplice, 
and  not  a  principal.  The  facts  recited  are  precisely  those 
which  constitute  an  accomplice  (Penal  Code,  art.  79),  but  do 
not  constitute  of  themselves  a  principal  offender,  because  they 
do  not  show  that  at  the  very  time  of  the  commission  of  the 
offense  by  Amon  Stevens  the  defendant  was  in  any  way  aiding, 
assisting  or  acting  together  with  said  Amon  Stevens  in  the  act 
of  homicide,  or  in  the  furtherance  of  it.  As  stated  in  the 
charge,  the  act  of  the  defendant  was  completed  anterior  to  the 
killing,  and  was  merely  auxiliary  thereto. 

As  a  legal  proposition,  however,  the  charge  is  unquestionably 
correct.  If  the  defendant  was  guilty  of  the  acts  recited,  he 
Avas  guilty  of  murder  in  the  first  degree,  but  he  was  guilty  as 
an  accomplice,  and  not  as  a  principal  offender.  This,  the  learned 
judge  failed  to  explain  to  the  jury,  nor  does  he  in  any  portion 
of  his  charge  instruct  the  jury  that,  if  they  believe  from  the 
evidence  that  the  defendant  was  an  accomplice  in  the  murder, 
and  not  a  principal  in  it,  they  could  not  convict  hira  under  the 
indictment  which  charged  him  only  as  a  principal.  In  this 
connection,  the  defendant  requested  the  court  to  give  the  fol- 
lowing special  charge,  viz. :  "  You  are  further  charged  that 
the  defendant  Ed.  Bean  being  charged  as  a  principal  offender, 
he  cannot,  under  the  code  of  this  state,  be  convicted  as  an  ac- 
complice." This  was  refused,  and  we  think  erroneously.  Had 
the  learned  judge  given  this  instruction,  his  otherwise  admi- 
rable charge  would  have  been  unexceptionable.  Without  this 
addition,  however,  the  issue  as  to  whether  or  not  the  defend- 


484 


AMERICAN  CRIMINAL  REPORTS. 


I; 


i< 


m<:^ 


ant  was  guilty  as  a  principal  or  as  an  accomplice  was  not  sub- 
mitted to  the  jury,  but  on  the  contrary  the  jury  were  in  effect 
told  that,  although  the  defendant  was  guilty  as  an  accomplice, 
he  still  might  be  convicted  properly  under  the  indictment 
charging  him  as  a  principal.  For  this  error  the  judgment  of 
conviction  must  be  reversed.  It  is  true,  that  this  objection  to 
the  conviction  is  a  technical  one,  and  apparently  witliout 
reason  to  support  it.  It  is  nevertheless  a  long  and  well  estab- 
lished rule  of  the  law,  and  without  pausing  now  to  examine 
and  discuss  its  utiUty  or  wisdom,  it  is  safe  to  say  that,  upon 
investigation  and  reflection,  it  will  be  found,  like  many  other 
technicalities  of  the  law,  to  be  founded  upon  solid  and  sulfi- 
cient  reasons,  and  that  it  would  be  dangerous  to  the  rights  of 
the  citizens  of  a  free  government  to  depart  from  or  disregard  it. 

We  will  here  again  take  occasion  to  suggest  to  district  and 
county  attorneys  the  very  great  utility  of  inserting  several  counts 
in  the  indictment  in  cases  like  this,  when  the  evidence  show.s 
one  or  the  other  of  two  or  more  offenses  growing  out  of  the 
same  transaction.  In  this  case,  the  evidence  presented  throe 
offenses,  of  either  of  which  the  jury  might  have  found  the  de- 
fendant guilty  under  proper  counts  in  the  indictment,  viz.:  mur- 
der as  a  principal,  accomplice  to  murder,  and  accessory  to 
murder.  From  the  evidence  before  us,  the  defendant,  by  liis 
own  confession,  was  guilty  both  as  an  accomplice  and  as  an 
accessory,  and  yet  under  the  indictment  as  it  was  framed  he 
could  not  legally  be  convicted  of  either  of  these  ofl'enses.  While 
the  evidence  is  clear  as  to  his  guilt  of  these  two  offenses,  it  is 
not  so  clear  that  he  was  guilty  as  a  principal,  though,  if  the 
charge  requested  by  his  counsel  and  refused,  which  we  have 
quoted,  had  been  given,  and  the  jury  thus  having  had  submit- 
ted to  them  the  issue  as  to  whetlier  he  was  a  principal  or  an 
accomplice,  had  found  that  he  was  a  principal,  we  would  not 
have  disturbed  the  conviction. 

Because  of  the  error  in  the  charge  of  the  court,  and  tlie 
error  in  refusing  to  give  the  special  charge  requested,  the  judg- 
ment is  reversed  and  the  cause  is  remanded. 

lieversed  and  remanded. 


as  not  sul)- 
sro  in  effect 
accomplice, 
indictment 
udgment  of 
►bjection  to 
tly  without 
well  estab- 
to  examine 
J  that,  ujion 
many  otlier 
d  and  sulli- 
le  rights  of 
iisrogard  it. 
district  and 
iveral  counts 
lence  shows 
5  out  of  the 
iented  three 
Dund  the  do- 
it, viz. :  mur- 
iccessory  to 
idant,  by  his 
B  and  as  an 
framed  he 
nses.  Willie 
offenses,  it  is 
ougli,  if  the 
ch  we  have 
had  subniit- 
icipal  or  an 
e  would  not 

urt,  and  the 
ed,  the  judg- 

rcmanded. 


INGRAM  V.  THE  STATE.  485 


Ingram  v.  The  State. 

(62  Miss.,  142.) 

MunDER :  Instructions  —  Evidence  —  Error  —  Self-defense, 

1.  In  the  trial  of  an  indictment  for  murder,  it  is  error  for  the  court 

to  instruct  the  jury  that,  in  order  to  rebut  the  presumption  of  malice 
arising  from  proof  of  the"  killing,  it  is  incumbent  on  the  defendant  to 
show  circumstances  of  alleviation,  excuse  or  justification  to  the  ^^sat- 
isfaction "  of  the  jury,  unless  the  same  appear  by  the  evidence  for  the 
state. 

2.  It  is  error  for  the  court  to  instruct  the  jury,  in  a  trial  for  homi- 

cide, that,  to  justily  the  killing  as  in  self-defense,  the  accused  must 
have  been  in  "  actual"  danger  from  the  deceased. 

3.  Feaver  instructions  to  be  given.—  The  frequent  commission  of  error 

in  instructions  in  criminal  cases  suggests  the  opinion  that  it  would 
promote  the  just  administration  of  the  law  and  advance  the  interests 
of  the  state  if  it  were  tiio  practice  in  the  circuit  courts  to  give  fewer 
instructions.  In  many  cases  it  would  be  wisn  to  give  no  instructions 
at  all  for  the  state,  and  in  none  is  it  prudent  to  give  many.  By  the 
adoption  of  such  a  coui'se,  convictions  would  be  as  numerous  as  before, 
and  reversals  would  be  rare. 

Appeal  from  the  Circuit  Court  of  Lauderdale  County!  Hon. 
S.  II.  Terral,  Judge. 

Calvin  Ingram  was  indicted  for  the  murder  of  Jack  Ingram. 
The  killing  was  not  denied  by  the  accused.  It  was  witnessed 
by  the  wife  and  little  son  of  deceased  and  the  wife  of  the  ac- 
cused. The  first  two  named  testified  for  the  state  and  the  lat- 
ter for  the  defendant,  who  also  testified.  The  evidence  as  to 
the  circi..iistances  attending  the  killing  was  broadly  conflicting. 

Grace  cfc  Woods,  for  the  ap])ellant. 
J.  L.  Han'iii,  for  the  state. 

CUmi'rki.l,  C.  J.,  delivered  the  opinion  of  the  court: 
The  third  instruction  for  the  state  is  subject  to  one  of  the 
grounds  of  objection  for  which  the  fifth  instruction  for  the 
state  in  Hawthorne  v.  The  State,  58  Miss.,  77S,  was  condemned, 
*'.  e.,  it  makes  it  incumbent  on  the  defendant  to  produce  in  evi- 
dence circumstances  of  alleviation,  excuse  or  justification  to  the 
satisfaction  of  the  jury.  An  instruction  very  much  like  this 
Avas  approved  in  Harris  v.  The  State,  47  Miss.,  318,  but  we, 
nevertheless,  disapprove  it. 


:.;f' 


■iS6 


AMERICAN  CRIMINAL  REPORTS. 


The  sixth  instruction  for  the  state  told  the  jury  that  the  de- 
fendant must  have  been  in  actual  dang'>r  at  the  time  of  the 
killing  to  justify  him  in  shooting  for  his  own  defense.  It  is 
true  that  another  and  distinct  clause  of  the  instruction  qualifies 
the  foregoing  by  embracing  the  proposition  of  the  sufficiency 
of  apparent  danger  at  the  time  to  justify  action  in  defense,  but 
it  is  by  no  means  clear  that  the  instruction  as  a  whole  was 
properly  undei'stooti,  and  that  it  did  not  do  harm. 

The  conflicting  evidence  as  to  the  circumstances  of  the  kill- 
ing made  it  especially  important  that  no  error  should  be  com- 
mitted in  instructing  the  jury. 

It  is  matter  of  much  regret  that  we  feel  compelled  so  often 
to  reverse  the  judgments  in  criminal  cases,  because  of  serious 
errors  which  could  be  easily  avoided.  When  we  see  that  the 
jury  has  been  misdirected,  and  may  have  been  misled  thereby, 
our  duty  is  to  grant  a  new  trial.  If  fewer  instructions  wore 
given  and  greater  care  was  observed  in  framing  them,  it  would 
be  most  favorable  to  the  interest  of  the  state  in  the  administra- 
tion of  the  criminal  laws.  In  numy  cases  it  would  bo  wise  to 
give  no  instructions  at  all  for  the  state,  and  in  none  is  it  pru- 
dent to  give  many.  By  this  course  convictions  would  be  just 
as  numerous  and  reversals  would  be  I'are. 

Judgment  reversed. 


People  v.  Majoks. 

(65  Cal.,  138.) 

MrRDEU :  Jeopardy  —  Kill  in  rj  tiro  personx  hij  same  act  —  Change  of  rrn  xr  — 
Connter-affldavits  —  Trial  vhile  under  life  sentence  —  Juror  who  rnfer- 
tains  consciejitioiiii  .stTMj>/e» — Res  gestae  —  Conversations  between  con- 
sjnrators, 

1.  Killing  op  two  peksons  by  the  same  act. —  The  murder  of  two  per- 

sons constitutes  two  separate  crimes,  for  each  of  which  a  defendant  is 
liable  to  a  separate  prosecution  and  trial,  though  tlie  killing  be  by  the 
same  act ;  and  a  conviction  or  acquittal  in  one  case  docs  nut  bar  a 
prosecution  in  the  other  on  the  plea  of  once  in  jeopardy. 

2.  Change  of  venue  — Counter- affidavits.— On  a  motion  by  defend- 

ant in  a  criminal  action  for  a  change  of  venue,  the  court  may  ixMiiiit 
the  introduction  of  counter-affidavits  for  the  purpose  of  contesting  the 
grounds  on  which  the  removal  is  prayed. 


PEOPLE  V.  MAJORS. 


487 


that  the  dc- 
time  of  tlio 
ifense.  It  is 
:ionqualifios 
e  sufticiency 
defense,  but 
a  whole  was 

;s  of  the  kill- 
)uld  bo  com- 

Ued  so  often 
ISO  of  serious 
see  that  the 
sled  tliereby, 
'actions  woi'e 
lern,  it  would 
10  admin istra- 
Id  be  wise  to 
y\\o  is  it  pru- 
vould  be  just 

nt  reversed. 


onge  of  venue — 
furor  who  rnter- 
ons  between  eon- 


irder  of  two  jier- 
;h  a  (lefentlant  is 
killing  be  liy  tlie 
does  not  bar  a 
dy. 

(tion  by  defond- 
ourt  may  ixMinit 
of  contosliny  the 


3.  Defendant  may  be  tried  for  murder  while  undergoino  life  sen- 

tence.— Although  a  defendant  be  already  under  sentence  of  life  im- 
prisonment for  another  crime,  it  is  within  the  jurisdiction  of  the  court 
to  try  him  for  murder. 

4.  Practice  on  plea  of  former  conviction.— No  appeal  lies  from  an 

order  denying  a  defendant,  in  a  criminal  action,  a  new  triiil  on  a  plea 
of  former  conviction,  and  the  court  may  proceed  to  try  the  defendant 
on  the  charge  of  murder,  though  an  appeal  has  been  taken  on  that 
ground  and  is  still  pending. 

5.  When  conscientious  scruples  of  .turor  is  cause  of  challenge.— 

Murder  is  not  necessarily  punishable  by  desvth,  but  as  death  may  be  the 
punishment,  under  the  provision  of  the  statute,  any  person  "enter- 
taining such  conscientious  opinions  as  would  preclude  liis  finding  the 
defendant  guilty,  must  neitlior  be  permitted  nor  compelled  to  serve  as 
a  juror." 

6.  Right  of  peremptory  challenge  until  jury  is  accepted.— Whe:  j 

the  prosecution  declined  to  exercise  the  right  of  peremptory  challenge 
and  passed  the  jury,  and  the  defendant  then  peremptorily  challenged 
a  juror,  the  action  of  the  court  in  then  permitting  the  prosecution  to 
peremptorily  challenge;  a  juror,  against  the  objection  of  the  defense, 
does  not  call  for  a  rm-ersal  of  tlie  judgment,  being  a  mere  irregularity 
at  most,  which  did  not  affect  any  substantial  right  of  the  defendant. 

7.  Res  gest.^. —  In  a  jnosecution  for  murder  the  suiTounding  circum- 

stances may  always  be  shown  as  part  of  the  res  gesta'.,  and,  as  such, 
the  condition  in  which  the  body  and  clothing  were  found  was  properly 
admitted  in  evidence. 

8.  Declarations  of  conspirators. —  All  matters  talked  of  in  conversa- 

tions between  ptu-ties  conspiring  to  commit  a  crime  are  admissible  if 
spoken  of  at  the  time  the  main  subject  of  the  conspiracy  was  talked 
of.  But  independent  of  this,  if  this  matter  was  stricken  out,  and  the 
jury  instructed  not  to  consider  it,  this,  of  itself,  would  be  sufficient  to 
cure  any  error  made  by  the  admission  of  it. 

Appeal  from  the  judgment  of  the  superior  court  of  Santa 
Clara  county,  on  the  plea  of  former  conviction,  and  from  a 
judgment  of  the  superior  court  of  Alameda  county,  and  from 
an  order  refusing  a  new  trial. 

,/.  Ji.  Lamar,  for  appellant. 

Attorncij-Gi'nend  Jlu/'shali  and  District- Attorney  Camjibell, 
for  respondent. 

MoKRisoN,  C.  J.  The  defendant  was  prosecuted,  by  informa- 
tion filed  in  the  superior  court  of  Santa  Clara  county,  for  tho 
murder  of  one  Archibald  McTntyre,  and  a  change  of  venue 
having  been  granted  him  to  the  county  of  Alameda,  he  was 
tried  and  convicted  there  of  the  crime  of  murder  in  the  first 


I  f ;s  ^;j  f 


488 


AMERICAN  CRIMINAL  REPORTS. 


'  *':-i' 


degree.  The  appeal  is  from  the  judgment  against  him  in  the 
first  named  court  on  the  plea  of  former  conviction,  as  well  as 
from  the  judgment  on  the  final  trial  in  the  county  of  Alameda, 
and  brings  before  us  for  review  all  the  orders  and  proceedings 
in  the  case  in  both  courts.  The  importance  of  the  case,  as  well 
as  the  zealous  and  able  manner  in  which  it  has  been  presenteil, 
demand  from  us  a  careful  consideration  of  all  the  questions 
involved.  The  first  and  most  important  point  to  be  considered 
is  the  plea  of  a  former  conviction,  and  for  a  full  and  distiniit 
understanding  of  the  trial  on  that  i)lea  we  will  consider  the 
facts  upon  which  it  was  submitted  to  the  jury,  as  the  same  are 
found  in  the  following  stipulation: 


(( 


STATKMKXT   OF    FACTS. 


"  (1)  That  the  defendant,  Lloyd  L.  Majors,  is  the  identical 
Lloyd  L.  Majors  who  was  a  defendant  in  the  information  filed 
in  this  court  on  the  oOth  day  of  March,  1883,  charging  Joseph 
Jewell,  John  Showers  and  Lloyd  L.  Majors  with  the  crime  of 
murder  in  the  killing  of  one  William  P.  Renowden  at  the  said 
county  of  Santa  Clara  on  the  11th  day  of  March,  1883. 

"(2)  That  under  said  information  of  March  30,  1883,  said 
Lloyd  L.  Majors  was  duly  arraigned,  and  on  the  2d  day  of 
April,  1 883,  pleaded '  not  guilty,'  and  was  put  upon  his  trial ;  tiiat 
on  the  27th  day  of  May,  1883,  the  jury  returned  into  said 
court  a  verdict  in  the  following  words,  etc.:  'The  Superioi' 
Court,  County  of  Santa  Clara.  The  J*eojj/c  of  the  State  of 
California  versus  Lloyd L.  Majors,  defendant.  AV^e,  the  jui'v  in 
the  above  entitled  cause,  find  the  -Jefendant,  J^loyd  L.  JMajors, 
guilty  of  murder  in  the  first  degree,  with  iuiprisonment  for  life 
in  the  state  prison.     John  Cakuick,  Foreman.' 

"  (3)  That,  in  pursuance  of  the  above  verdict,  the  court,  on 
the  2d  day  of  June,  1883,  pronounced  u})on  said  Lloyd  L. 
Majors  judgment  of  imprisonment  for  life  in  the  state  prison 
at  San  Qucntin,  and  said  judgment  is  final  and  in  full  force. 

"  (4)  The  facts  shown  by  the  evidence  upon  the  said  trial 
under  said  information  of  March  30,  1883,  and  upon  which 
said  Majors  was  convicted, as  aforesaid,  are  as  follows:  That 
said  Lloyd  L.  Majoi'S  counseled  and  advised  one  Joseph  Jewell 
to  rob  one  William  P.  Renowden,  living  near  Lexington,  in 
the  said  county  of  Santa  Clara,  on  the  11th  day  of  March, 


PEOPLE  V.  MAJORS. 


489 


him  in  the 
as  well  as 
:  Alameda, 
iroceedings 
ase,  as  well 
presented, 
}  questions 
considered 
.nd  distiii'it 
jnsider  the 
le  same  arc 


e  identical 
nation  tiled 
jing  Joseph 
;ie  crime  of 
at  the  said 
1883. 

),  1883,  said 
t  2d  day  of 
s  trial;  that 
into  said 
le  Supericjr 
he  State  of 
the  jury  in 
L.  Majors, 
lent  for  life 

0  court,  on 
lI  Lloyd  h. 
tate  prison 
uU  force. 

said  trial 
ipon  which 
mvs:  That 
soph  Jewell 
3xington,  in 

of  March, 


1883;  that  on  said  day  said  Jewell  repaired  to  said  Reno w- 
dcn's  house,  taking  with  him  one  John  Showers;  that  said 
Jewell  and  Showers  unexpectedly  found  at  the  house  of  said 
lienowden  one  Archibald  Mclntyre,  who  was  then  residing 
with  said  Renowden ;  that  in  the  attempt  to  carry  out  the  de- 
sign of  robbery,  both  said  Renowden  and  said  Mclntyre  were 
there  and  then,  at  the  same  point  of  time,  to  wit,  about  6:30 
o'clock  P.  ^l.  of  the  llth  day  of  March,  1883,  killed  by  said 
Jewell  and  Showers. 

'"  (5)  Said  ^[ajors  was  not  present,  neither  did  he  personally 
])articipato  in  the  said  act  of  killing  said  Renowden  and  Mcln- 
tyre, or  either  of  them,  except  counseling  and  advising  said 
Jewell  to  commit  said  robbery  as  aforesaid. 

"  (♦*»)  The  foregoing  evidence  and  facts  are  substantially  the 
evidence  and  facts  adduced  upon  the  trial  of  said  Lloyd  L. 
Majors  upon  the  trial  heretofore  had  in  this  court,  upon  said 
information,  for  the  murder  of  William  P.  Renowden,  and 
which  are  to  be  adduced  and  ])roven  in  support  of  the  infor- 
mation now  pending,  to  which  the  said  Lloyd  L.  ]\lajors  has 
pleaded  a  former  conviction,  should  the  same  be  put  in  issue 
by  a  plea  of  not  guilty. 

"(7)  It  is  stipulated  and  agreed  by  the  plaintifTs  and  the  de- 
fendant as  follows:  The  foregoing  statement  of  evidence  and 
facts  are  hereby  admitted  to  be  true,  sohsly  for  tlio  purpose  of 
determining  the  issue  now  pending  in  this  court  on  the  plea  of 
former  conviction,  and  shall  be  read  in  evidence  on  the  trial 
of  said  issue  as  the  evidence  of  the  case,  together  with  the 
record  of  the  case  of  the  people  against  Lloyd  L.  ]\[ajors  for 
the  murder  of  AVilliam  P.  Renowden,  heretofore  tried  in  this 
court,  consisting  of  the  judgment  roll  and  the  minutes  of  the 
court  in  said  cause." 

The  defendant  was  Hrst  prosecuted  for,  and  convicted  of,  the 
murder  of  said  Renowden,  and  as  it  is  stipulated  in  the  agreed 
statement  of  facts  on  which  he  v.-as  tried  in  the  present  case, 
on  his  plea  of  former  conviction,  that  Renowden  and  Mclntyre 
were  "at  the  same  point  of  time,  to  wit,  about  0:30  o'clock 
P.  :M.  of  the  llth  of  :March,  18S3,  killed  by  said  Jewell  and 
Showers,"  it  is  therefore  claimed  that  defendant  has  been  once 
hi  jeopard ij,  and  cannot  now  be  prosecuted  for  the  murder  of 
Mclntyre.     In  support  of  this  ground  of  defense  defendant 


■:m' 


490 


AMERICAN  CRIMINAL  REPORTS. 


SJI"' 


relies  upon  numerous  adjudged  cases,  and  it  must  bo  conceded 
that  the  ;^r(neral  principle  is  too  well  established  to  admit  of 
controversy  that  the  law  will  not  allow  the  peo|)le  to  maintain 
a  second  prosecution  after  a  former  trial  and  conviction  or  ac- 
quittal of  a  party /(>/'  the  same  offence.  The  cases  niost  strongly 
relied  upon  on  the  part  of  the  defense  wo  will  now  proceed  to 
examine. 

The  first  is  the  case  of  Dnmon  v.  State,  2  Tyler  (Vt.),  3S7, 
in  which  it  appeared  that  the  defendant  had,  in  tlie  same  affray 
and  b}'  the  same  stroke,  cut  two  persons,  and,  having  been 
convicted  of  wounding  one  of  the  parties,  it  was  held  that  the 
plea  of  autrefoiii  convict  was  well  pleaded  to  an  indictment  for 
wounding  the  other.  In  delivering  the  opinion  of  the  court, 
the  learned  judge  says: 

'"The  indictment  charges  the  defendant  Avith  having  dis- 
turbed the  public  peace  by  assaulting  and  wounding  one  of  its 
citizens.  For  this  crime  he  shows  that  he  has  been  legally 
convicted  b}^  a  court  of  competent  jurisdiction.  lie  cannot, 
tliorefore,  be  again  held  to  answer  in  this  court  for  the  same 
offense." 

On  the  theor}'  that  both  indictments  were  for  "  the  same 
bi'eacli  of  the  peace,"  and  not  for  wounding  two  persons  by  the 
same  wrongful  act,  the  case  may  be  harmonized  with  author- 
ities whicli  will  be  liercafter  referred  to  in  this  opinion. 

Another  case  relied  on  is  that  of  State  v.  Cooper,  13  N".  J. 
Law,  3G1.  Tlic  defendant  was  indicted  for  the  crime  of  mur- 
der, committed  in  feloniously  setting  fire  to  and  burning  the 
dwelling-house  of  one  Kalph  Smith,  in  Avhich  was  one  Josepli 
Hooper,  who  was  burned  to  death.  To  t.iO  indictment  defend- 
ant interposed  the  plea  of  former  conviction  on  an  indictment 
for  the  crime  of  arson,  committed  in  setting  lire  to  and  burn- 
ing the  same  dwelling-house.  The  plea  was  sustained,  and  the 
court  in  its  opinion  says: 

"  It  is  a  maxim  of  the  common  law  that  no  man  is  to  be 
brought  in  jeopardy  of  his  life  more  than  once  for  the  siune 
offense.  .  .  .  Upon  this  principle  are  founded  the  pleas  of 
autrefois  acquit  and  autrefois  convict.  The  writers  on  the 
subject  concur  in  stating  that  these  pleas  must  be  upon  a  i)r<)s- 
ecution  for  the  same  identical  act  and  crime.  3  Bl.  CoJiun., 
336;  1  Chit.  Crim.  Law,  452,  402.    But,  says  Chitty  (page  455;, 


PEOPLE  V.  MAJORS. 


491 


I  conceded 
)  admit  of 
)  maintain 
tion  or  ac- 
st  strongly 
proceed  to 

(Vt.),  387, 
ame  affray 
Lvin^  been 
1(1  that  the 
ctment  for 

the  court, 


laving  dis- 
r  one  of  its 
een  legally 
lie  cannot, 
r  the  same 


"  the  same 
sons  by  the 
ith  autlior- 
>ion. 

;•,  13  N.  J. 
nie  of  mur- 
urning  the 
Dne  Joseph 
nt  dcfond- 
indictment 
f)  and  burn- 
ed, and  the 

m  is  to  he 
)r  the  siime 

he  pleas  of 
ers  on  the 
ipon  a  pros- 
1)1,  Comm., 

(page  455\ 


'  it  is  not  in  all  cases  necessary  that  the  two  charges  should  be 
precisely  the  same  in  point  of  degree,  for  it  is  sufficient  if  an 
wquittal  of  the  one  would  t<how  that  the  defendant  could  not 
have  heen  guiltij  of  the  othet'.''  Thus  a  general  acquittal  of 
murder  is  a  discharge  upon  an  indictment  for  manslaughter 
on  the  same  person,  hccaiise  the  latter  charge  was  Included  in 
the  former.  ...  At  first  view  it  appears  as  if  there  were 
two  crimes  distinctly  indictable  and  punishable.  But  our 
sense  of  justice  is  shocked  by  the  idea  that  a  man  shall  be  con- 
victed and  punished  for  the  arson,  with  that  measure  of  pun- 
ishment which  the  laws  mete  out  to  those  guilty  of  that  crime, 
and  that  afterwards,  for  a  perfectly  accidental  and  involun- 
tary killing,  he  shall  be  liable  to  the  same  punishment  of  death 
which  is  inflicted  on  the  wilful  and  malicious  murderer.  In 
the  case  before  us  the  killing  vxis  a  slnqde  conKequenee  of  the 
hurning,  and  there  is  no  pretense  that  it  was,  in  point  of  fact, 
intentional." 

Wo  have  quoted  from  the  opinion  at  some  length  to  show 
how  far  it  bears  iqwn  the  case  wc  are  now  consiilering. 

A  third  case  is  that  of  Clem  v.  State,  42  Ind.,  4ti0,  in  which 
Downey,  J.,  delivering  the  opinion  of  the  court,  says: 

"It  does  not  follow,  because  one  of  the  indictments  was  for 
tiie  murder  of  Nancy  Jane  Young  and  the  other  for  the  mur- 
der of  Jacob  Young,  that  the  crime  is  not  the  same.  If  the 
same  act  of  the  defendant  resulted  in  the  death  of  both  of 
them,  there  was  but  one  crime.  When  b}'  the  discharge  of  a 
fire-arm,  or  a  stroke  of  the  same  instrument,  an  injury  is  in- 
flicted upon  two  or  more  persons,  or  their  death  is  produced, 
there  is  but  one  crime  committed." 

This  case  is  an  authority  in  favor  of  the  defendant,  if,  as  his 
learned  counsel  contends,  the  stipulation  means  that  the  deaths 
of  lienowden  and  Mclntyre  resulted  from  one  and  the  same 
act, —  a  question  which  we  will  consider  hereafter. 

The  cases  of  Copenhaven  v.  State,  14  Ga.,  8,  and  Holt  v.  State, 
38  Ga.,  187,  are  also  cited  on  behalf  of  the  defendant,  and  it 
is  there  said  that  "the  plea  of  autrefois  acquit  or  convict  is 
sufficient  whenever  the  proof  shows  the  second  case  to  be  the 
same  transaction  with  the  first."  The  question  how  far  the 
authority  of  these  cases  agrees  with  other  kindred  cases  de- 
pends on  what  is  meant  by  ths  word  "  transaction." 


W 


492 


AMERICAN  CRIMINAL  REPORTS. 


\M 


The  foregoin<^  review  of  the  cases  relied  on  in  support  of 
defendant's  plea  of  former  conviction  will  sidllco  for  the  pur- 
poses of  this  opinion,  and  we  will  now  proceed  to  the  examina- 
tion of  some  of  the  cases  cited  by  the  prosecution: 

It  is  claimed  that  the  case  in  42  Ind.  has  been  overruled  by 
the  same  court  in  the  two  later  cases  of  State  v.  l'Jdi't\  05  Ind., 
2S2,  and  State  v.  Hattehnujh,  HG  Ind.,  223.  In  the  llrst  case 
(reported  in  03  Ind.)  the  rule  on  the  subject  wo  are  now  treat- 
ing is  stated  as  follows: 

"When  the  same  facts  constitute  two  or  more  offenses, 
wherein  the  lesser  offense  is  not  necessarily  included  in  the 
greater,  and  when  the  facts  necessary  to  convict  in  the  second 
prosecution  ^vould  not  necessarily  have  convicted  in  the  first, 
then  the  first  prosecution  will  not  be  a  bar  to  the  second, 
ulthotK/h  the  (iffcnsea  xocre  hoth  committed  at  the  same  time  and 
hy  the  mine  actP 

And  in  the  otlier  case  (00  Ind.)  it  is  said : 

"The  usual  test  by  which  to  determine  whether  tlN3  former 
conviction  or  accjuittal  was  for  the  same  oifensc  jis  that  cliai'<^('(l 
in  the  second  prosecution,  and  therefore  whether  the  foi'inei-  is 
a  bar  to  the  latter,  is  to  incjuire  whether  the  evidence  neces- 
sary to  sustain  the  latter  would  have  justified  a  conviction  in 
the  former  case." 

Testing  the  case  of  Clmn  v.  State,  sapra,  by  the  rule  laid 
down  in  the  later  cases  referred  to  ((55  and  00  Ind.)  it  would  bo 
difficult  to  sustain  tlio  authority  of  the  former.  CMem,  bciing 
indicted  and  prosecuted  for  the  murder  of  Nancy  Young,  could 
not,  on  such  indictment  and  prosecution,  have  been  convicted 
of  the  murder  of  another  person,  to  wit,  Jacob  Young,  nor 
vice  uema.  Indeed,  on  an  indictment  for  the  murder  of  one  of 
the  Youngs,  evidence  on  the  part  of  the  prosecution  tending 
to  orove  the  murder  of  the  other,  would  have  been  whollv  in- 
admissible  on  the  general  rules  of  evidence. 

We  now  come  to  cases  on  the  other  side  more  directly  in 
point.  The  first  case  to  which  we  will  refer  is  that  of  State  r. 
Standifer,  5  Port.  (Ala.),  5213,  in  which  it  appears  that  two 
persons,  John  W.  F.  Long  and  Lei  A.  Long,  were  injured  — 
one  killed  and  the  other  wounded  —  by  the  defendant  at  the 
same  time  and  in  the  same  transaction.  For  the  murder  the  de- 
fendant was  tried  and  acquitted,  and  on  the  trial  for  the  woun<l- 


upport  of 
r  tlio  pur- 
(  examina- 

Brruled  by 

'/',  05  Ind., 

lirst  case 

now  troat- 

)  ofTonscs. 
led  in  tlic 
the  second 
n  tlie  first, 
lie  second, 
3  time  mid 


;l(i3  former 
at  cliar<>ed 
e  former  is 
'nee  neces- 
nviclion  in 

rule  laid 
t  woidd  Ije 

em,  be  in},' 
luny,  could 

convicted 

oun;^,  nor 
r  of  one  of 
m  tendin*;- 

wholly  in- 
directly ill 
of  t^tak  r. 
that  two 

injured  — 

ant  at  the 
der  the  de- 
thc  wound- 


,1 


PEOPLE  V.  MAJORS. 


198 


\ng  ho  pleaded  the  acquittal  in  the  murder  case.  The  court 
held  the  })lea  bad,  and  stated  the  law  as  follows: 

"  Cases  exist  in  which  a  minor  offense  may  be  discharged  by 
the  acquittal  of  the  individual  charged  on  an  indictment  for  a 
major  offense,  but  these  are  cases  in  which  the  jury  trying  the 
case  could  have  lawfully  returned  a  verdict  for  the  lesser  crime. 
Thus  an  acquittal  for  murder  would  be  a  bar  to  an  indictment 
for  manslaughter.  So  of  a  burglary,  when  the  same  indict- 
numt  included  a  charge;  of  larceny,  an  acquittal  would  be  a 
complete  bar.  But  the  reason  in  such  cases  is  that  the  jury 
could,  if  the  evidence  was  satisfactory,  have  convicted  tlie 
off(mder  of  the  lesser  criminal  charge.  In  the  present  case 
no  (juestion  can  possibly  arise  as  to  the  law.  The  offenses 
'lave  no  appearance  of  identity;  they  could  not  be  included  in 
the  same  indictnjent;  and  the  evidence  which  would  produce 
an  acquittal  of  the  one  might  produce  a  conviction  of  the 
other." 

The  next  case  is  that  of  Tedt  v.  State,  .53  ^Miss.,  4:30,  where 
it  was  hold  that  "  T.  and  S.,  lying  in  ambifeh  together,  each 
armed  with  a  double-barreled  shot-gun,  two  distinct  but  almost 
simultaneous  shots  were  fireil  from  the  ambush,  by  which  G. 
and  W.  were  mortally  wounded,  and  S.  fired  a  third  shot  in 
the  prostrate  body  of  G. ;  that  the  murder  of  G.  was  a  distinct 
crime  from  that  of  AV.,  and  that  for  each  of  the  offenses  T. 
might  be  sei)arately  tried;  nor  could  he,  on  an  indictment  for 
the  murder  of  AV.,  successfully  plead  former  jeopardy  in  hav- 
ing been  alread}'  tried  for  the  murder  of  G.  A  putting  in 
j(M)pardy  for  one  act  is  no  bar  to  a  prosecution  for  a  separate 
aiul  distinct  act,  merely  because  they  are  so  closely  connected 
in  point  of  time  that  it  is  impossible  to  separate  the  evidence 
relating  to  them  on  the  trial  for  one  of  them  first  had.''  The 
learned  judge  further  says:  "It  is  believed  that  no  well-con- 
sidered case  can  be  found,  where  a  putting  in  jeopardy  for  one 
act  was  held  to  bar  a  prosecution  for  another  separate  and  dis- 
tinct one,  merely  because  they  were  so  closely  connected  in 
point  of  time  that  it  was  impossible  to  separate  the  evidence 
relating  to  them." 

In  VaiKjhan.  v.  Com.,  2  Va.  CaS.,  273,  it  was  held  that  "  if  a 
person  be  indicted  for  shooting  S.  W.,  and  acquitted  thereof, 
and  then  indicted  for  shooting  J.  "W.,  her  plea  of  autrefois 


'''  al.'l 
If- 


404 


AMERICAN  CRIMINAL  REPORTS. 


P  ■ 


a<;qu'd  will  not  be  supported,  although  the  same  act  of  shoot- 
ing is  charged  in  each  indictment." 

Bishop,  in  his  Avork  on  Criminal  Law  (vol.  1,  §  1051),  speak- 
ing of  the  identity  of  offenses,  says :  "  They  are  not  the  same  — 
First,  when  the  two  indictments  are  so  diverse  as  to  preclude 
the  same  evidence  from  sustaining  both;  or,  secondly,  when 
the  evidence  offered  on  the  iirst  indictment,  and  that  intended 
to  be  offered  on  the  second,  relate  to  different  transactions, 
whatever  be  the  wonie.  of  the  respective  allegations;  or,  thirdly, 
when  each  indictment  sets  out  an  offense  differing  in  all  its 
elements  from  that  in  the  other,  though  both  relate  to  one 
transaction,"  etc. 

In  the  case  of  Frceland  v.  People,  10  111.,  380,  it  was  held 
"  that  it  was  no  bar  to  a  prosecution  for  a  riot  that  one  of  the 
accused  had  been  tried  and  convicted  and  fined  for  an  assault 
and  battery  arising  out  of  the  same  transaction  or  offense,  and 
occurring  at  the  same  time.  A  riot  may  embrace  an  assault 
and  battery,  yet  a  conviction  of  the  latter  cannot  be  pleaded 
in  bar  of  a  prosecution  for  the  fc»rmer."  8ee,  also,  Severiti  v. 
People,  37  III,  4U. 

In  the  case  of  Com.  v.  Rohy,  VI  Pick.,  490,  the  court  says 
that  "a  conviction  upon  an  indictment  for  an  assault,  with  in- 
tent to  commit  murder,  cannot  be  pleaded  in  bar  to  an  indict- 
ment for  murder."  And,  further,  "unless  the  first  of  the  two 
indictments  was  such  as  the  prisoner  might  have  been  con- 
victed upon,  by  proof  of  the  facts  contained  in  the  second, 
an  acquittal  or  conviction  on  the  first  can  be  no  bar  to  the 
second." 

In  the  case  of  Burns  and  Carey  v.  People,  1  Parker,  Crim. 
Rep.  (N.  Y.),  182,  the  supreme  court  of  New  York  holds  that, 
"  to  constitute  a  bar,  the  offense  charged  in  both  indictments 
must  be  iilentically  the  same,  in  law  as  well  as  in  fact."  To 
the  same  effect  is  the  case  of  People  v.  Saunders,  4  I*arker, 
Crira.  Rep.,  190,  as  is  also  the  case  of  Pefjina  v.  Mori'is,  10  Cox, 
C.  C,  480. 

We  might  cite  many  other  cases  laying  down  the  same  prin- 
ciple, but  Ave  will  content  ourselves  with  the  foregoing,  and 
one  other  case  from  our  own  reports.  We  refer  to  the  cases  of 
People  V.  Alibes,  49  Cal.,  452,  where  it  was  held  that  "  an  in- 
dictment which  charges  the  defendant  with  the  murder  of  three 


PEOPLE  V.  MAJORS. 


495 


of  shoot- 

51),  speak- 
10  same  — 
3  preclude 
uUy,  Avhon 
,t  intended 
insactions, 
or,  thirdli/, 
in  all  its 
ite  to  one 

;  was  held 
one  of  the 
an  assault 
(lYense,  and 
an  assault 
be  pleaded 
Sever  in  v. 

court  says 
it,  with  in- 

an  indict- 
of  the  two 
!  been  con- 
he  second, 

bar  to  the 

rker,  Crini. 
holds  that, 
ndictments 
fact."  To 
4  Parker, 
ris,  10  Cox, 

1  same  prin- 


jgomg, 


and 


the  cases  of 
hat  "  an  in- 
Jer  of  three 


persons  charges  three  offenses.''  The  charge  Avas  that  the  de- 
fendant administered  a  poisonous  drug,  to  wit,  strychnine,  to 
three  persons  at  one  and  the  same  time,  and  the  trial  court  was 
asked  to  arrest  the  judgment  on  the  ground  that  the  indict- 
ment charged  more  than  one  offense,  in  violation  of  sectio-^  054 
of  the  Penal  Code.  The  court  refused  to  arrest  the  judgment, 
and  the  supi-eme  court  reversed  the  case.  This  is  a  direct 
authority  on  the  point  we  have  been  considering,  and  we  do 
not  doubt  its  correctness. 

On  the  trial  of  the  defendant,  Majors,  for  the  murder  of 
I'enowden  he  could  not  have  been  convicted  of  the  murder  of 
Mclntyre.  The  two  crimes,  although  committed  at  one  time 
and  by  the  same  act,  are  entirely  different  in  their  elements, 
and  the  evidence  required  to  convict  in  the  one  case  very  dif- 
ferent from  that  essential  to  a  conviction  in  the  other. 

Tested,  then,  by  the  rule  laid  down  in  the  foregoing  cases, 
the  plea  of  former  conviction  was  not  sustained  on  the  trial  in 
the  supei'ior  court  of  Santa  Clara  county. 

P>ut  we  do  not  think  the  stipulation  means  that  both  Eenow- 
don  and  ]\lclntyre  were  murdered  by  one  and  the  same  act.  It 
niigiit  well  be  that  the\'  were  both  killed  at  the  same  point  of 
time,  and  it  docs  not  follow  therefrom  that  the  murder  of  the 
two  was  accomplished  by  one  act.  There  were  two  parties  di- 
rectly concerned  in  the  murder,  and  each  of  them  might  have 
discharged  his  weapon  at  his  victim  at  the  same  moment  or 
point  of  time,  and  yd  the  killing,  under  such  circumstances, 
would  have  l)een  done  by  two  acts  entirely  separate  and  dis- 
tinct from  each  other,  lender  such  a  state  of  facts  the  author- 
ities all  agree  that  there  may  be  several  prosecutions,  and  the 
burden  of  proof  was  on  the  defendant  to  show  that  there  was 
hut  one  act  which  caused  the  death  of  the  two.  But  even  on  this 
theory  we  have  attempted  to  show  that  the  better  rule,  and 
that  establis-hed  by  the  great  weight  of  respectable  authority, 
is  that  the  murder  of  two  persons,  even  by  the  same  act,  con- 
stitutes two  offenses,  for  each  of  which  a  separate  prosecution 
will  lie,  and  that  a  conviction  or  acquittal  in  one  case  does  not 
bar  a  prosecution  in  the  other. 

2.  Defendant's  second  point  is  that  the  court  erred  in  per- 
mitting the  introduction  of  countor-aflidavits,  on  defendant's 
motion,  for  a  change  of  the  place  of  trial.    Sections  1033  and 


496 


AMERICAN  CRIMINAL  REPORTS. 


1034:  of  the  Penal  Code  provide  for  the  removal  of  a  criminal 
action  on  the  application  of  defendant,  and  section  10J>5  of  tlie 
same  code  declares  that,  "  if  the  court  is  satisfied  that  the  rep- 
resentation of  the  defendant  is  true,  an  order  must  be  made  for 
the  removal  of  the  action  to  the  proper  court  of  a  county  free 
from  a  like  objection."  It  is  claimed,  on  bolialf  of  tlie  defense, 
that  when  a  sufficient  showing  for  such  removal  is  made  by  tlie 
defendant's  affidavit,  the  court  is  obliged  to  accept  as  true  the 
facts  sworn  to  by  him,  and  the  people  cannot  controvert  his 
statements  by  opposing  affidavits.  The  language  of  the  code 
is  that,  "  if  the  court  is  satisfied  that  the  representation  of  the 
defendant  is  true,"  it  shall  nuike  the  order  of  removal.  It  is 
not  a  fair  implication,  fi'om  the  language  of  the  provision,  tliat 
counter-affidavits  may  be  filed  on  behalf  of  the  jioople,  and  is 
such  not  the  good  sense  of  the  law  in  such  cases?  When  the 
proper  showing  is  made  bj'  the  defendant,  the  court  would  bo 
ohlhjed  to  make  the  order  of  removal,  if  counter-affidavits  were 
not  allowed,  but  the  court  must  be  satt'sjiWIthnt  the  defendant's 
affidavit  sjxal's  the  tnifh,  and  it  may  be  that  this  can  be  shown 
only  after  the  prosecution  has  been  allowed  to  file  counter- 
affidavits.  Such  seems  to  have  been  the  vi'3w  taken  by  this 
court  in  People  v.  Yoa/i'iwi,  53  Cal.,  570,  and  .ve  have  no  doubt 
of  its  correctness. 

3.  On  the  motion  of  the  prosecution  for  the  court  to  fix  a 
day  for  a  trial  of  the  case,  the  defendant  objected  to  the  juris- 
diction of  the  court  on  two  grounds:  7'7;'.v/,  that  the  defendant 
Avas  under  sentence  of  life  imprisonment  in  the  state  prison; 
and,  secondly,  that  an  api)eal  had  been  taken  and  was  still 
pending  in  the  supreme  court  from  the  order  of  the  superior 
court  denying  a  new  trial  on  the  plea  of  former  conviction. 
The  first  objection  is  answered  by  the  decision  of  this  court  in 
the  case  of  People  v.  Hong  Ah  Duel',  CA  Cal.,  387;  and  the 
second  by  the  case  of  People  v.  Majors,  C5  Cal.,  100.  It  is  un- 
necessary for  us  to  do  more  than  refer  to  these  cases.  The 
defendant  had  been  once  tried  on  his  plea  of  former  conviction, 
and  it  Avas  not  the  duty  of  the  court  to  grant  him  another  trial 
on  that  plea.  We  see  no  irregularity  in  the  proceedings  of  the 
court  connected  with  this  assignment  of  error. 

4.  The  fourth  ground  of  error  relied  upon  relates  to  the  im- 
paneling of  the  jury.    The  prosecution  was  allowed  to  chal- 


Vi-:-]  ■'S:i-. 


PEOPLE  V,  MAJORS. 


497 


a  criminal 
10P.5  of  the 
lat  the  rep- 
le  made  for 
x)unty  free 
he  defense, 
ladc  by  tlie 
as  true  the 
itrovert  his 
of  tlie  code 
ition  of  the 
oval.  It  is 
ivision,  that 
aple,  and  is 

When  the 
rt  would  be 
davits  were 
defendant's 
n  be  shown 
lile  counter- 
von  by  this 
ve  no  doubt 

irt  to  fix  a 

0  the  juris- 
0  defendant 
ate  prison; 

1  was  still 
lie  superi(jr 
conviction, 
lis  court  in 
T;  and  the 

It  is  un- 
tases.  The 
conviction, 
nothor  trial 
lings  of  the 

s  to  the  im- 
cd  to  chal- 


lenge jurors  peremptorily  under  subdivision  8  of  section  1074 
of  the  Penal  Code,  which  provides  as  follows:  •"  If  the  offense 
charged  be  punishable  with  death,  the  entertaining  of  such 
conscientious  opinions  as  would  preclude  his  finding  the  de- 
fendant guilty,  in  which  case  he  must  neither  he  permitted  nor 
compelled  to  serve  as  a  juror."  It  is  claimed  that  inasmuch  as 
the  crime  of  murder  is  not  necossarilij  punishable  by  death, 
therefore  the  above  subdivision  of  section  1074  does  not  apply. 
We  cannot  yield  our  assent  to  this  view  of  the  law.  Murder 
may  be  punished  under  the  code  by  death,  but  if  jurors  in  the 
case  entertain  conscientious  scruples  against  the  infliction  of 
the  death  penalty,  the  law  inflicting  that  penalty  would  be  a 
dead  letter  on  the  statute  book.  It  has  always  been  held,  so 
far  as  our  experience  or  knowledge  goes,  that  the  provision  of 
the  code  referred  to  applies  in  all  prosecutions  for  murder,  and 
we  have  no  doubt  that  it  does. 

5.  The  next  objection  involves  another  question  concerning 
the  I'ight  of  peremptory  challenges.  It  is  said  that  the  prose- 
cution "  passed  the  jurors,  declining  to  exercise  any  challenge. 
The  defendant,  being  then  called  upon  to  exercise  his  peremp- 
tory challenges,  if  any  he  had,  then  challenged  one  juror,  and 
the  prosecution  then  immediately  demanded  to  challenge  one 
of  said  jurors,  and  was  allowed  to  do  so,  against  the  defenil- 
ant's  objection."  This,  it  is  claimed,  was  a  violation  of  section 
loss  of  the  Penal  Code,  which  provides;  "If  all  challenges 
(for  cause)  on  both  sides  are  disallowed  either  i)arty,  first  the 
[)euple  and  then  the  defendant  may  take  a  peremptory  chal- 
lenge, unless  the  parties'  peremptory  challenges  are  exhausted." 
In  the  case  of  People  v.  JfcCarfhi/,  48  Cal.,  557,  it  was  held 
"  that  if  the  prosecution  in  a  criminal  case  pass  the  jury  to  the 
defendant,  who  declines  to  make  any  challenge,  the  prosecu- 
tion may  then  interpose  a  peremptory  challenge  to  a  juror 
before  he  is  sworn."  It  is  true,  the  foregoing  case  differs 
slightly  from  this,  inasmuch  as  in  that  case  the  defendant  did 
not  interpose  any  challenge,  whereas,  in  this  case,  he  did; 
but  we  do  not  think  that  the  ditference  between  the  facts  of 
the  two  cases  in  any  manner  alfects  the  principle  applicable  to 
both.  It  is  there  said  that  the  prosecution  liad  not  accepted 
the  jury  by  only  passing  them  to  the  other  side.  At  most,  the 
Vol.  V  — 32 


498 


AMERICAN  CRIMINAL  REPORTS. 


I 


M' 


l(ii:;|; 


':i': 

:;j^ 


action  of  the  court  was  an  irregularity,  not  affecting,  so  far  as 
we  can  see,  any  substantial  right  of  the  defendant,  and  one 
which  does  not  call  for  a  reversal  of  the  judgment.  Penal 
Code,  §  1258;  Peoj}le  v.  Sprague,  53  Cal.,  491. 

6.  The  admission  of  certain  evidence  sliowing  or  tending  to 
show  that  Renowden's  person  and  clothing  had  been  burned  is 
the  next  matter  complained  of.  We  do  not  clearly  perceive 
what  objection  could  have  been  made  to  the  admission  of  this 
evidence.  The  production  of  the  bloody  clothing  worn  at  the 
time  b}'^  the  victim  of  a  homicide  is  a  matter  of  common  prac- 
tice, and  certainly  it  would  be  permitted  for  the  jury  to  view 
the  remains  of  the  deceased,  as  they  are  allowed  under  the 
express  provision  of  the  code  to  view  the  premises  where  the 
homicide  was  committed.  Sometimes  bodies  are  exhumed  lor 
the  purpose  of  procuring  evidence  against  the  accused.  The 
condition  in  which  the  body  and  clothing  were  found  was 
properly  admitted  in  evidence.  The  surrounding  circumstances 
may  always  be  shown  as  a  part  of  the  res  gest(jB.  1  Gi'cenl. 
Ev.,  §  108. 

7.  The  conversations  admitted  in  evidence  between  defendant 
and  Jewell  all  occurred  at  one  time  and  were  properly  ad- 
mitted. At  the  time  the  main  transaction  was  discussed,  those 
other  matters  were  spoken  of.  If  they  had  not  been  talked 
about  at  the  same  time,  and  in  the  course  of  the  same  conver- 
sation, they  would  have  been  inadmissible.  But,  independent 
of  this,  they  were  stricken  out  on  motion  of  defendant's  coun- 
sel, and  the  jury  were  instructed  not  to  consider  them.  This 
was  of  itself  sufficient  to  cure  any  error  there  might  have  been 
in  their  admission. 

8.  Defendant  complains  of  the  action  of  the  court  in  giving 
and  refusing  certain  instructions.  We  have  examined  the  in- 
structions given,  and  think  they  contain  a  correct  exposition  of 
the  law  applicable  to  the  case.  We  have  also  examined  the 
instructions  refused,  and  think  the  action  of  the  court  in  refus- 
ing them  was  correct. 

We  have  now  considered  all  the  points  in  the  case  made  by 
the  learned  counsel  for  the  defense,  and  have  endeavored  to 
answer  them. 

No  error  is  found  in  the  case  which  calls  for  a  reversal  of  the 


ing,  so  far  as 
ant,  and  one 
nent.     Penal 

or  tending  to 
een  burned  is 
arly  perceive 
ission  of  tliis 
r  worn  at  the 
lommon  prac- 

juiy  to  view 
ed  under  tlie 
ses  where  the 

exhumed  for 
iccused.  The 
•e  found  was 
circumstances 
w.     1  Greenl. 

een  defenchmt 
i  pi'operly  ad- 
scussed,  tliose 
:  been  talked 
same  conver- 
,  independent 
ndant's  coim- 
r  them.  This 
^ht  have  been 

ourt  in  giving 
mined  the  in- 
ex  posit  ion  of 
examined  the 
jourt  in  refus- 

caso  made  by 
entloavored  to 

reversal  of  the 


mm 


BRADSUAW  V.  STATE. 


499 


judgment  below,  and  the  same  is  therefore  affirmed,  together 
with  the  order  denying  a  new  trial. 

Judgment  and  order  affirmed. 

Myrick,  J. ;  McKee,  J. ;  Ross,  J. ;  Thornton,  J. ;  Shaupstein, 
J.,  and  MoKiNSTRY,  J.,  concurred. 

Eehearing  denied. 


Bradsuaw  v.  State. 

(17  Neb.,  147.) 

Murder  :  Jurors  —  Assiating  prosecutor  —  Jnstructiona  —  Evidence. 

1.  Bill  OF  EXCEPTIONS.— Affidivvits  fileil  as  evidence  in  the  district  court 
mtist  be  certified  to  the  supreme  court  by  a  proper  bill  of  exceptions, 
and  be  thus  made  a  part  of  the  record,  or  tiiey  cannot  be  considered. 

3.  Jurors— Convictions  as  to  death  penalty.— If  a  juror,  on  his  rotV 
dire  examination  in  a  case  depending  upon  circumstantial  evidence, 
answer  that  his  convictions  are  such  as  would  preclude  him  from  re- 
turninp:a  verdict  of  guilty,  where  the  punishment  would  be  death,  it 
is  good  ground  of  challenge  for  cause  on  the  part  of  the  state.  St. 
Louis  V.  State,  8  Neb.,  405;  .S.  C,  1  N.  W.  Rep.,  371. 

3.  Assisting  distkict  attorney.— The  disf-ict  attorney  in  a  criminal 

trial  may  have  the  assistance  of  counsel  eniiiloyed  on  private  account. 
Polin  V.  State,  14  Neb.,  540:  .<?.  C.  ION.  W.  Rep.,  898. 

4.  Attorneys  — Misstatements  — OBJEtTiONs  to.— Where  it  is  alleged 

that  an  attorney,  in  the  argument  of  a  cause  on  trial  to  a  jury,  made 
misstatenieuts  of  the  evidence,  and  went  outside  of  the  recoril  in  his 
statements  of  the  facts  proved  on  the  trial,  the  attention  of  the  court 
should  be  called  to  the  language  and  conduct  of  the  attorney  by  the 
proper  objection,  and  a  ruling  had  thereon  by  the  court.  If  the  objec- 
tion is  overruled  and  an  exception  taken,  the  (juestion  may  be  revieweti 
in  the  supreme  ct)urt  upon  the  language,  objection,  ruling,  and  excep- 
tion being  made  a  i)art  of  the  record  by  the  proper  bill  of  exceptions, 
but  not  otherwise. 

6.  Instructions  —  Applicability. —  Instructions  to  a  jury  must  he  appli- 
cable to  the  testimony  introduced  upon  the  trial.  It  is  not  error  to  re- 
fuse to  instruct  uijon  a  ixjint  of  law  which  does  not  su-ise  in  the  case, 
and  which  would  have  no  reference  to  any  of  the  evidence,  nor  to 
refuse  to  give  an  instruction  when  the  same  has,  in  substance,  already 
been  given. 

•.  In  cases  of  circumstantial  evidence  it  is  necessary  that  all  the  facta 
and  circumstances  essential  to  a  conviction  be  proved  beyond  a  reation- 


'1  ' ' 


500 


AMEBICAN  CRIMINAL  REPORTS. 


i' 


1**3 


able  doubt;  but  it  is  not  necessary  that  each  link  in  the  evidence 
"relied  upon"  should  be  proven  beyond  a  reasonable  doubt;  such 
facts,  if  not  proven,  should  be  discarded  by  the  jury. 
7.  The  evidence  in  the  case  examined,  and  found   suQicient  to  sustain  the 
verdict  of  the  jury. 

Error  to  the  District  Court  for  Ga^e  County. 

Z.   ''        >^bj/,  JIasleti  «J^  Bates,  for  plaintitf  in  error. 
Wib'-  ■'  I     ^cse^  attorn ey-g^noial,  for  tiie  state. 

Reksk,  T.  Tlie  plaintiff  in  error  wts  indicted  by  the  grand 
jury  ot  G  ffe  c'^:/.*y  for  the  murder  of  Harry  C.  Voorlieos. 
Upon  trial  he  was  founi  guilty  of  murder  in  tlie  second  degi'ec 
and  was  sentenced  to  the  penitent  ary  for  life.  He  alleges 
error,  and  seeks  to  reverse  tlie  judgii/ent  of  the  district  court. 
The  questions  presented  by  his  brief  and  the  record  will  be 
noticed  in  the  order  in  which  they  are  ])resented. 

Complaint  .s  made  of  the  decision  of  the  district  court  in 
overruling  a  motion,  made  by  phiintiff  in  error,  for  a  change  of 
the  place  of  trial.  Tlie  motion  is  based  upon  the  alleged  bias 
and  pi'ejudice  of  the  citizens  of  the  county  in  which  the  cause 
was  pending,  to  such  an  extent  that  a  fair  and  impartial  trial 
could  not  be  had  in  that  county.  We  find  cpiite  a  number  of 
affidavits  attached  to  the  record,  which  seem  to  have  been  takt-n 
upon  the  issue  presented  by  this  motion,  and  if  they  were  all 
presented  to  the  trial  court,  there  is  no  error  in  its  ruling,  for 
we  think  there  was  sufficient  to  warrant  it  in  finding  that  such 
bias  and  prejudice  did  not  exist.  But  these  affidavits  are  in  no 
W'ay  certified  to  by  the  court,  are  not  embodied  in  any  bill  of 
exceptions,  and,  as  has  been  repeatedly  held  by  this  court,  can- 
not \)Q  here  considered.  If  it  is  desired  to  review  the  decision 
of  a  district  court  upon  any  (question  of  fact,  the  proof  submit- 
ted to  that  court  must  be  preserved  by  a  proper  bill  of  excep- 
tions. Affidavits  come  directly  within  this  rule,  and  must  be 
preserved  by  bill  of  exceptions,  and  made  a  part  of  tlie  record, 
in  order  to  be  considered.  I'eimicr  v.  Crowhy,  16  Neb.,  i5G!), 
and  cases  there  cited. 

The  foregoing  observations  will  apply  to  the  second  point  of 
error  assigned,  whicii  is  that  the  district  court  erred  in  over- 
ruling the  motion  of  plaintiff'  in  error  for  a  continuance.  We 
observe  an  "  explanation "  following  the  motion,  and  which 


BRADSHAW  v.  STATE. 


501 


I  the  evidence 
e  doubt;  such 

t  to  sustain  the 


ror. 

by  the  grand 
C  Yoorlieos. 
jcond  degi'oc' 
,  He  al logos 
listrict  court. 
Bcord  will  be 

rict  court  in 
r  a  change  of 
;  alleged  bias 
ich  the  cause 
uipartiul  trial 
a  nunibc'i'  of 
ve  been  taken 
they  were  all 
its  ruling,  for 
ing  that  such 
tvits  are  in  no 
in  any  bill  of 
lis  court,  can- 
v  the  decision 
jroof  subniit- 
bill  of  excep- 
and  must  be 
jf  the  record, 
6  Neb.,  3C9, 

cond  point  of 
erred  in  o\  er- 
inuance.  We 
in,  and  which 


was,  doubtless,  intended  for  the  clerk  to  sign,  to  the  effect  that 
the  affidavits  referred  to  by  the  motion  "  are  copied,  and  appear 
next  before  said  motion ;"  but  the  clerk's  signature  does  not 
appear.  It  is  not  signed.  But  this  would  not  have  been  suf- 
ficient. All  such  affidavits  must  be  incorporated  into  the 
record  by  a  bill  of  exceptions.  The  mere  certificate  of  the 
clerk  is  not  enough. 

Complaint  is  made  of  the  rulings  of  the  district  court  in  sus- 
taining and  overruling  challenges  made  to  Jurors  while  impan- 
eling the  trial  jurj'.  AVe  have  read  that  part  of  the  record,  and 
find  that  four  challenges  to  juroi-s,  for  cause  made  by  the  state, 
were  sustained,  and  to  which  ])laintiff  in  error  excepted.  Mr. 
Deny  was  called  as  a  juror.  In  answer  to  questions  propounded 
by  the  district  attorney^  he  stated  that  he  had  conscientious 
scruples  against  the  death  penalty  in  case  of  murder,  and  tliat 
he  did  not  believe  in  inflicting  such  penalty.  The  court  then 
asked  him  if  his  opinions  were  such  as  would  preclude  his 
bringing  in  a  verdict  of  guilty,  where  the  prisoner  was  charged 
with  an  offense  the  penalty  of  which  w'as  death?  His  answer 
was :  "  Well,  I  should  be  opposed  to  bringing  in  a  verdict  of 
that  kind,  because  I  am  opposed  to  the  death  penalty." 

Mr.  Mundel  was  called  as  a  juror,  and,  in  answer  to  the 
question  of  the  district  attorney,  stated  that  he  had  conscien- 
tious convictions  upon  the  subject  of  the  infliction  of  the  death 
penalty;  that  he  did  not  believe  in  it  in  any  case.  The  court 
then  asked  him  the  following  question:  "  Are  your  opinions 
such  as  to  preclude  you  from  bringing  in  a  verdict  of  guilty 
where  the  defendant  was  charged  with  an  offense  the  penalty 
of  which  was  death?"  The  juror  answered  frankly,  "Yes, 
sir." 

J.  E.  Bryant  was  called  and  interrogated  by  the  district 
attorney.  He  stated  unequivocally  that  he  was  not  in  favor  of 
inflicting  the  death  penalty.  The  court  then  propounded  to 
him  this  question:  "  Are  your  opinions  such  as  preclude  your 
bringing  in  a  verdict  of  guilty  in  a  case  where  the  defendant  is 
charged  with  an  offense  the  penalty  of  which  is  death?"  An- 
swer, "  They  are." 

Mr.  Bartlery,  on  being  examined  as  to  his  qualifications, 
stated  that  if  the  evidence  w^as  positive  and  direct  he  would 
have  no  such  opinions  as  would  prevent  him  from  returning  a 


\m- 


W(-^ 


502 


AMERICAN  CRIMINAL  REPORTS. 


verdict  of  guilty,  but  that  in  a  case  of  circumstantial  evidence 
he  would  not  do  it.  At  the  close  of  his  examination,  when 
asked  by  the  court  whether  he  could  or  not,  he  answered  as 
follows :  "  That  I  could  not  m  circumstantial  evidence  convict 
a  man  of  murder  in  the  first  degree." 

Tiiese  jurors  were  cliallengcd  for  cause  by  the  district  attor- 
ney, and,  the  challenge  being  sustained  by  the  court,  they  were 
excused.  In  this  there  was  no  error.  Tlie  law  prescribed  but 
one  punishment  for  murder  in  the  first  degree,  and  that  is 
death.  If  a  person  is  called  to  act  as  a  juror  who  states  in  the 
outset  that  he  so  thoroughly  abhors  that  mode  of  punishment 
that  he  would  not  in  any  case  assent  to  its  administration,  it 
would  be  a  mockery  to  retain  him  on  the  jury.  If  he  believes 
it  to  be  essentially  wrong  to  inflict  the  penalty,  he,  of  course, 
could  not  assent  to  it.  The  same  may  be  said  as  to  the  juror 
who  would  not  convict  upon  circumstantial  evidence.  The 
questions  here  presented  have  already  been  passed  upon  by 
this  court  in  St.  Louis  v.  State,  8  Neb.,  405. 

It  is  next  urged  that  the  court  erred  in  permitting  W.  H. 
Ashby,  an  attorney  of  the  Gage  county  bar,  to  assist  the  dis- 
trict attorney  in  the  prosecution  of  plaintiff  in  error.  The 
record  shows  that  before  any  evidence  was  introduced,  the  dis- 
trict attorney  stated  to  the  court  that  lie  desired  the  assistance 
of  Mr.  Ashby  in  the  trial  of  the  cause,  on  account  of  the  mag- 
nitude of  the  case;  that  he  had  before  that  time  requested  his 
aid,  etc.  Plaintiff  in  error  objected  by  his  counsel,  an<l  stated 
that  the  attorney  was  not  a  disinterested  attorney,  and  was 
employed  by  the  friends  of  the  deceased.  The  court  overruled 
the  objection  and  allowed  Mr.  Ashby  to  assist  in  the  prosecu- 
tion. In  this  there  was  no  error.  Polin  v.  State,  14  Nob., 
540. 

The  fifth  and  sixth  assignments  of  error  are  to  the  effect 
that  the  trial  court  erred  in  its  rulings  upon  the  admissibility 
of  testimony  offered  by  the  state  and  by  plaintiff  in  error  dur- 
ing the  trial.  These  assignments  are  too  general.  If  it  is  de- 
sired to  have  the  rulings  of  the  lower  court  reviewed  by  this 
court,  such  rulings  as  are  thought  to  be  objectionable  should 
be  designated  or  pointed  out.  We  have  examined  tho  evidence 
throughout,  and  are  unable  to  find  such  prejudicl;ii  error  as 
would  call  for  a  reversal  of  the  case. 


..Si,  'fiV 


BRADSHAW  v.  STATE. 


808 


tial  evidence 
lation,  when 
answered  as 
>cnce  convict 

,li strict  attor- 
irt,  they  were 
rose  ri  bed  but 
I.  and  that  is 
»  states  in  the 
f  punishment 
linistration,  it 
If  he  beheves 
he,  of  course, 
to  the  juror 
,'idence.  The 
!sed  upon  by 

nitting  W.  H. 
assist  the  dis- 
n.  error.  The 
[luced,  the  dis- 
the  assistance 
it  of  the  mag- 
requested  his 
sel,  and  stated 
rncy,  and  was 
ourt  overruled 
1  the  prosocu- 
^tate,  14  Nob., 

to  the  effect 
admissibility 
ff  in  error  <lur- 
il.  If  it  is  de- 
viewed  by  this 
onable  should 
id  tho  evidence 
dicliii  error  as 


The  next  question  presented  is  that  "  the  district  court  erred 
in  permitting  the  district  attorney  to  make  misstatements  of 
the  evidence,  and  statements  not  Avarranted  by  the  evidence, 
prejudicial  to  the  accused,  in  the  argument  of  the  case  to  the 
jury."  By  an  examination  of  the  bill  of  exceptions  we  find 
the  facts  stated  or  recited  therein,  that  in  the  argument  of  the 
case  to  the  jury  the  district  attorney  made  use  of  certain  lan- 
guage there  quoted  which  it  is  said  was  objected  to,  and  the 
language  "  taken  down  at  the  request  of  counsel  for  defend- 
ant." But  nowhere  is  it  shown  that  the  ruling  of  the  court 
upon  the  objection  was  adverse  to  plaintiff  in  error,  or  that 
any  ruling  thereon  was  requested.  The  supreme  court,  in  the 
exercise  of  its  appellate  jurisdiction  in  cases  of  this  kind,  is 
limited  to  the  correction  of  the  errors  of  the  district  court. 
Before  a  case  can  be  reversed  and  a  new  trial  ordered,  it  must 
appear  that  the  court  before  whom  the  accused  was  tried 
erred,  and  that  such  error  was  prejudicial  to  the  party  on  trial. 
The  practice  in  this  state  is  now  settled  in  this  respect,  and, 
before  this  court  can  review  questions  of  this  kind,  the  atten- 
tion of  the  trial  court  must  be  challenged  by  a  proper  objec- 
tion to  the  language,  and  a  ruling  had  upon  the  objection.  If 
the  language  is  approved  by  the  court,  and  the  attorney  is  al- 
lowed to  pursue  the  objectionable  line  of  argument,  an  excep- 
tion to  the  decision  can  be  noted.  By  a  bill  of  exceptions 
showing  the  language  used,  the  objection,  ruling  of  the  court 
and  exception  to  the  question  can  be  presented  to  this  court 
for  decision.  If  the  trial  court  sustains  the  objection,  and 
thus  condenms  the  language,  and  requires  the  attorney  to  de- 
sist and  confine  himself  to  the  evidence  in  the  case,  no  injury 
is  suffered  by  the  accused.     Ci'opsey  v.  Aver'dl,  8  Neb.,  160. 

A  large  number  of  authorities  are  cited  by  plaintiff  in  error 
for  the  purpose  of  showing  that  a  new  trial  will  be  granted 
where  it  appears  that  the  attorney  for  the  prevailing  party  has 
abused  the  privileges  of  counsel  in  an  argument  to  the  jury. 
It  is  quite  probable  that  where  such  abuse  is  apparent,  and  to 
the  prejudice  of  the  unsuccessful  party, it  should  be  done.  But 
it  must  be  upon  a  proper  record  showing  a  refusal  of  the  dis- 
trict court  to  correct  the  wrong,  if  any  be  done. 

In  Cleveland  Paper  Co.  v.  Banks,  15  Neb.,  20,  a  new  trial 
was  granted  for  what,  doubtless,  seemed  to  the  court  to  be  a 


'-■ )'  '  ^ 


Mi 


604 


AMERICAN   CRIMINAL  REPORTS. 


flagrant  abuse  of  the  privileges  of  the  attorney  for  the  pre- 
vailing party.  But  it  is  noticeable  that  the  question  of 
practice  was  not  involved,  and  was  not  decided  in  that  case, 
except  in  so  far  as  it  aflFected  the  conduct  of  the  successful 
party  in  the  district  court. 

The  eighth  point  presented  by  the  brief  of  plaintiff  in  error 
is  that  "  the  court  erred  in  refusing  to  give  the  seventli  para- 
graph of  instructions  asked  by  defendant."  The  instruction 
referred  to  is  as  follows : 

"  The  jury  are  instructed  that  the  law  makes  the  defendant 
in  this  case  a  complete  witness,  and  that  the  jury  have  no  right 
to  disregard  his  testimony  on  the  ground  alone  that  he  is  the 
defendant,  and  stands  charged  with  the  commission  of  a  crime. 
The  law  presumes  the  defendant  to  be  innocent  until  he  is 
proven  guilty,  and  the  law  allows  him  to  testify  in  his  own  be- 
half, and  the  jury  should  fairly  and  impartially  consider  his 
testimony,  together  with  all  the  other  evidence  in  the  case; 
and  if,  from  all  the  evidence,  the  jury  have  any  reasonable 
doubt  as  to  whether  the  defendant  comniitted  the  crime  in 
manner  and  form  as  charged  in  the  indictment,  you  should  give 
the  defendant  the  benefit  of  the  doubt  and  acquit  liim." 

Viewing  this  instruction  as  an  abstract  statement  of  the  law 
of  the  land  as  applicable  to  a  proper  case,  we  might  not  differ 
with  the  counsel  for  plaintitf  in  error ;  but  we  are  left  wholly 
in  the  dark  as  to  its  applicability  to  the  case  at  bar.  We  have 
carefully  read  all  the  testimony  introduced  ui)on  the  trial,  and 
have  again  carefully  gone  through  the  record,  which  is  quite 
voluminous,  and  we  are  unable  to  find  any  word  of  teftimony 
given  by  the  accused  in  his  own  behalf.  There  is  no  record  of 
his  having  been  sworn  as  a  witness.  The  instruction  did  not 
apply  to  the  case  and  was  rightfully  refused.  Instructions 
must  be  based  upon  the  evidence.  Meredith  v.  Kennard,  1 
Neb.,  319;  Neihwrdt  v.  Kilmer,  12  Neb.,  38;  City  of  Crete  v. 
Childs,  11  Neb.,  257;  Williams  v.  State,  0  Neb.,  334. 

The  trial  court  refused  to  give  the  fifteenth  instruction  asked 
by  plaintiff  in  error.  This  instruction  was  a  literal  copy  of 
section  27,  page  165,  of  the  Compiled  Statutes  of  this  state, 
defining  the  boundaries  of  Gage  county,  following  with  the 
charge  that  unless  it  was  proven  by  the  evidence  that  the  of- 
fense charged  in  the  indictment  was  committed  within  the 


BRADSHAW  v.  STATE. 


606 


m 
-I 


for  the  pre- 
question  of 
I  that  case, 
e  successful 

itiff  in  error 
jventh  para- 
instruction 

0  defendant 
ave  no  right 
it  he  is  the 
\  of  a  crime. 
,  until  he  is 
his  own  be- 
consider  his 
in  the  case; 
;  reasonable 
he  crime  in 
u  should  give 
him." 

It  of  the  la\Y 
;ht  not  differ 
!  left  wholly 
,r.  We  have 
he  trial,  and 
liich  is  quite 
)f  testimony 
no  record  of 
tion  did  not 
Instructions 
Kennard,  1 
/  of  Crete  V. 

action  asked 
3ral  copy  of 
>f  this  state, 
ng  with  the 
that  the  of- 
l  within  the 


boundaries  of  said  county  it  was  the  duty  of  the  jury  to  ac- 
quit. This  instruction  had  already  been  substantially  given  to 
the  jury  in  the  twelfth  instruction,  given  upon  the  motion  of 
plaintiff  in  error,  a  part  of  which  was  as  follows :  "  It  is  neces- 
sary for  the  state,  in  order  to  secure  a  conviction  in  this  case, 
to  prove  beyond  a  reasonable  doubt  that  the  crime  was  com- 
mitted in  Gage  county,  Nebraska."  This  was  sufficient  upon 
that  point.  If  an  instruction  has  already  boon  substantially 
given,  one  similar  to  it  may  be  refused.  0/loe  v.  State,  11 
Neb.,  30;  BlnfieU  v.  State,  15  Neb.,  489;  KevTcow  v.  Bauer,  15 
Neb.,  167. 

The  next  assignment  of  error  contained  in  the  brief  of  plaint- 
iff in  error  is  tliat  "  the  court  erred  iu  giving  the  tenth,  twelfth, 
tliirteenth,  fifteenth  and  seventeenth  paragra])lis  of  instruc- 
tions given  by  the  court  on  its  own  motion."  No  suggestion 
is  made  as  to  how  or  in  what  ])articular  the  court  erred  in  giv- 
ing these  instructions,  and  nothing  further  concerning  them  is 
contained  in  the  brief.  As  the  next  assignment  of  error  in- 
cludes in  the  same  general  way  all  the  other  instructions 
(exce^it  the  first)  given  to  the  jury  otherwise  than  at  the  re- 
quest of  plaintiff  in  error,  we  will  dispose  of  all  except  the 
eighth  by  saying  we  have  examined  them  and  see  no  good 
ground  for  criticism. 

The  eighth  instruction,  being  specially  pointed  out  as  objec- 
tionable, will  be  noticed  with  more  particularity.  It  is  as 
follows : 

"  The  court  further  instructs  the  jury  that  the  rule  requiring 
the  jury  to  be  satisfied  of  defendant's  guilt  beyond  a  reason- 
able doubt,  in  order  to  warrant  a  conviction,  does  not  require 
that  the  jury  should  be  satisfied,  beyond  a  reasonable  doubt, 
of  each  link  in  the  chain  of  circumstances  relied  upon  to  estab- 
lish defendant's  guilt ;  it  is  sufficient  if,  taking  the  testimony 
altogether,  the  jury  are  satisfied,  beyond  a  reasonable  doubt, 
that  the  state  has  proven  each  material  fact  charged,,  and  that 
the  defendant  is  guilty." 

It  is  insisted  that,  as  this  case  depended  upon  circumstantial 
evidence,  this  instruction  must  have  had  great  weight  with  the 
jury,  attd  might  have  misled  them  to  the  prejudice  of  plaintiff 
in  error,  if  it  was  considered  by  them  at  all  in  their  delibera- 


w 


1 


5H0 


AMERICAN  CRIMINAL  RETORTS. 


tions.  As  was  intimated  in  Marion  v.  State,  Ifi  Neb.,  3^9, 
decided  by  this  court  during  the  last  terra,  this  instruction, 
standing  alone,  might  mislead  a  jury.  In  such  a  case,  it  seems 
to  us,  it  should  bo  looked  upon  with  disfavor.  Unexplained  by 
other  in.structions,  it  might  be  misunderstood.  As  wo  under- 
stand the  rule,  in  cases  of  circumstantial  evidence,  it  is  neces- 
sary in  cases  of  this  kind  for  the  state  to  prove,  beyond  a  rea- 
sonable doubt,  everv  circumstance  which  is  emential  to  the 
conclusion.     Starkie  on  Ev.,  85.) ;  Burrill  on  Cir.  Ev.,  136. 

An  alleged  circumstance  may,  in  the  language  of  the  instruc- 
tion, be  "  relied  upon  "  in  the  chain  of  circumstances  by  which 
the  guilt  of  an  accused  is  sought  to  bo  established  or  the  con- 
clusion reached,  and  yet  not  l)e  essential  to  that  conclusion.  A 
circumstance  may  be  "relied  upon"  by  the  pro.secution  as 
tending  to  prove  facts  from  which  the  inference  of  guilt  is  to 
be  drawn,  and  yet  it  may  not,  in  the  language  of  Starkie,  bo 
one  of  the  "  circumstances  f  I'om  which  the  conclusion  is  drawn." 
The  ultimate  conclusion  of  guilt  is  drawn  from  certain  essential 
facts,  from  the  existence  of  which  the  mind  is  logically  i  nd 
irresistibly  forced  to  infer  the  main  fact  to  be  proved.  If  one 
of  these  essential  facts  is  wanting,  the  mind  fails  to  reach  the 
conclusion.  To  illusti'ate,  we  will  suppose  a  dead  body  is  found 
upon  the  public  highway.  Upon  insj)ection  it  is  apparent  that 
death  has  been  recent,  and  irowi  e.\ternal  violence.  A  person 
is  subsequently  charged  with  the  commission  of  a  murder  in 
killing  the  deceased.  The  evidence  is  circumstantial.  Among 
the  circumstances  proven  is  that  at  about  the  time  of,  or  soon 
after,  the  death  of  deceased  a  person  was  seen  some  distance 
from  the  body,  going  hastily  in  a  <lirection  opposite  to  that  of 
the  body.  From  the  distance  at  which  he  was  obsei'ved  he  is 
said,  by  the  witnesses  who  saw  him,  to  be  of  the  same  general 
description  of  the  accused,  and  that  they  believe  it  to  have 
been  him.  This  fact  is  relied  upon  by  the  prosecution  as  one 
"link  in  the  chain  of  circumstances  "  "to  establish  the  defend- 
ant's guilt,"  and  it  is  so  urged  upon  the  attention  of  the  jury 
as  proof  that  it  was  the  accused  who  was  thus  seen  by  the  wit- 
nesses. But  the  jury,  satisfied  beyond  a  reasonable  doubt  of 
the  guilt  of  the  accused  from  a  convincing  array  of  other  cir- 
oumstances,  wholly  disbelieve  that  the  person  seen  by  the  wit- 


T 


BRADSHAW  r.  STATE. 


007 


;  Neb.,  3fi9, 
instruction, 
aso,  it  seems 
explained  by 
lS  wo  untlor- 
3,  it  is  necos- 
eyond  a  rea- 
ntial  to  the 
Ev.,  136. 
f  the  instruc- 
ces  by  which 
d  or  the  con- 
(uclusion.    A 
•osecution  as 
of  guilt  is  to 
f  Starkie,  bo 
on  is  drawn." 
tain  essential 
logically  i  nd 
►ved.     If  one 
,  to  reach  tho 
jody  is  found 
ipparent  tliat 
e.    A  person 
a  murder  in 
iial.     Among 
le  of,  or  soon 
lome  distance 
ite  to  that  of 
bserved  lie  is 
same  general 
,'e  it  to  have 
!Ution  as  one 
h  the  defend- 
1  of  the  jury 
in  by  the  wit- 
ible  doubt  of 
■  of  other  cir- 
ri by  the  wit- 


ness was  the  accused,  and  are  satisfied  that  it  was  another 
individual.  It  would  not  necessarily  follow  that  they  should, 
for  that  reason,  actjuit. 

A  man  is  accused  of  the  murder  of  his  wife  by  the  adminis- 
tration of  a  deadly  poison.  All  the  circumstances  ol'  the  case 
point  with  almost  absolute  certainty  to  his  guilt.  The  jury  are 
satisfied  of  it  beyond  a  reasonable  doubt.  He  is  proven  to  bo 
devoid  of  atfection  for  her.  Has  been  seen  to  cruelly  maltreat 
her.  His  conduct  towards  another  woman  establishes  tiie  fact 
that  she  has  supplanted  his  wife  in  his  affections.  The  jjoison 
has  been  found  within  the  body  of  deceased  in  a  sulficient 
quantity  to  produce  death.  He  is  sljown  to  have  recently  pur- 
chased tlie  same  kind  of  poison  for  tho  alleged  j)urpose  of 
destroying  a  family  dog  which  has  been  permanently  injured, 
but  which  he  wishes  to  kill  without  pain.  It  is  shown  he  had 
no  dog,  and  none  had  been  injured.  He  has  but  recently 
caused  the  life  of  his  wife  to  be  heavily  insured.  He  has  been 
heard  to  nuike  threats  and  insinuations,  which,  in  the  light  of 
subsequent  events,  show  that  ho  intended  and  confidently  ex- 
pected her  death  at  an  early  day.  A  witness  is  called  for  the 
prosecution  who  testifies  that  at  a  particular  time  he  saw  the 
accused  in  the  compan}'  of  the  other  woman  under  circum- 
stances of  very  questionable  propriety,  and  which,  if  believed, 
would  establish  illicit  intercour.se  between  them.  This  last  fact 
is  ''relied  upon"  as  a  "link  in  the  chain  of  circumstances"  to 
establish  the  fact  of  his  guilt  of  the  crime  charged.  Tlie  jury 
are  fully  satisfied  of  his  guilt,  but  from  the  conduct  or  demeanor 
of  the  witness,  or  from  some  other  cause,  do  not  believe  the 
story  of  tlie  illicit  intercourse.  Must  they,  therefore,  find  the 
accused  not  guilty  ?  Clearly  not.  That  circumstance,  although 
"relied  upon,"  should  be  disregarded. 

By  an  examination  of  the  other  instructions  given  to  the 
jury,  it  is  very  apparent  that  the  language  used  in  this  eighth 
instruction  was  used  in  the  sense  above  indicated,  and  could 
not,  in  connection  with  the  othera,  mislead  the  jnry.  "The 
true  meaning  and  effect  of  instructions  are  not  to  be  deter- 
mined by  the  selection  of  detached  parts  thereof,  but  by  con- 
sidering all  that  is  said  upon  each  particular  subject  or  branch 
of  the  case."  St.  Louis  v.  State,  8  Neb.,  lOS.  The  instructions 
given  to  the  jury  were  full  and  elaborate.    The  law  of  circum- 


fi 


m 


508 


AMERICAN  CRIMINAL  REPORTS. 


ar^ 


stantial  evidence  was  fully  explained,  and  the  jury  were  thor- 
oughly informed  that  all  the  inculpatory  facts  necessary  to 
establish  the  guilt  of  plaintiff  in  error  should  bo  fully  proved, 
and  that  they  must  be  such  facts  and  circumstances  as  were 
absolutely  incompatible  with  the  innocence  of  plaintiff  in  error, 
and  incapable  of  explanation  upon  any  reasonable  hypothesis 
other  than  that  of  his  guilt. 

In  State  v.  Ilaydeii,  45  Iowa,  11,  the  trial  court  was  requested 
to  charge  the  jury  as  follows:  "As  the  evidence  in  the  case  is 
wholly  circumstantial,  you  must  be  satisfied  beyond  a  reason- 
able doubt  of  each  necessary  link  in  the  chain  of  circumstances 
to  establish  the  defendant's  guilt."  This  instruction  was  re- 
fused, and  the  following  was  given  by  the  court:  "Tiie 
defendant  is  presumed  to  be  innocent  of  the  crime  charged, 
until  proved  guilty  beyond  a  reasonable  doubt ;  and  as  the  evi- 
dence in  this  case  is  circumstantial,  it  is  your  duty  to  give  all 
the  circumstances  a  careful  and  conscientious  consideration, 
and  if,  upon  such  consideration,  the  minds  of  the  jury  are  not 
firmly  and  abidingly  satislied  of  the  defendant's  guilt, —  if  the 
conscientious  judgment  of  the  jurors  wavers  and  oscillates, — 
then  the  doubt  of  the  defendant's  guilt  is  reasonable,  and  you 
should  acquit."  The  court,  by  liotlu-ock,  J.,  says:  "The 
instruction  asked  by  defendant  was  properly  refused,  and  that 
given  by  the  court  is  correct.  It  is  not  a  reasonable  doubt  of 
any  one  proposition  of  fact  in  the  case  which  entitles  to  an 
acquittal.  It  is  a  reasonable  doubt  of  guilt,  arising  upon  the 
consideration  of  all  the  evidence  in  the  case." 

In  Sumner  v.  State,  5  Blackf.,  579,  the  following  instruction 
was  asked  by  the  defendant,  who  was  on  trial  for  the  murder 
of  his  wife:  "Every  circumstance  material  to  this  case  must 
also  be  proved  beyond  a  rational  doubt,  or  it  is  the  duty  of  the 
jury  to  discard  such  circumstance  in  making  up  their  verdict.'' 
This  instruction  was  refused,  and  the  refusal  held  to  be  error. 
Blackford,  J.,  in  writing  the  opinion  of  the  court,  says:  "  We 
think  that  if  the  jury,  in  making  up  their  minds  from  cii-cum- 
stantial  evidence,  have  a  rational  doubt  as  to  the  existence  of 
any  of  the  material  circumstances  attempted  to  be  ))roved,  that 
circumstance  ought  not  to  have  any  inHuenco  with  them  in 
forming  their  opinion  resjiecting  the  guilt  or  innocence  of  the 
defendant;  or,  in  the  language  of  the  instruction  asked,  the 


•# 


'Wi.-  ■i'7T 


BRADSHAW  v.  STATE. 


509 


'  were  thor- 
ecessary  to 
illy  proved, 
ces  as  were 
Li  if  i  a  error, 
hypothesis 

IS  requested 
a  tlie  case  is 
d  a  reasiin- 
rcumstancos 
ion  was  rc- 
urt:  "Tlie 
ne  charged, 
I  as  the  evi- 
r  to  give  all 
»nsideratiou, 
jury  ai'e  not 
ailt, —  if  the 
oscillates, — 
>le,  and  you 
lys:  "The 
ed.  and  that 
ble  doubt  of 
titles  to  an 
ig  upon  the 

instruction 

the  murder 
s  case  must 

duty  of  the 
eir  verdict." 

to  be  error, 
says :  "  We 
rom  circum- 
existence  of 
proved, that 
ith  them  in 
ence  of  the 
1  asked,  the 


jury  ought,  in  such  case,  to  discard  such  circumstance  in  mak- 
ing up  their  verdict."  Applying  this  rule  to  the  case  at  bar,  it 
was  not  only  correct  for  the  court  to  instruct  the  jury  that  it 
was  not  necessary  that  each  link  relied  on  should  bo  proved 
beyond  a  reasonable  doubt,  but  it  would  have  been  competent 
to  instruct  them  that  if  any  of  the  circumstances  "rehed  upon" 
were  not  proven,  they  might  discard  them  entirely  and  con- 
sider the  case  without  reference  to  them. 

The  next  and  last  proposition  contained  in  the  brief  of  plaint- 
iff in  error  is  that  "  the  evidence  was  not  sufficient  to  sustain 
the  verdict  of  the  jury."  It  is  impracticable  in  this  opinion  to 
discuss  the  evidence  at  any  great  length.  The  trial  was  a  long 
one,  the  record  is  voluminous.  The  circumstances  pointing 
toward  jUaintiff  in  error  are  num(M"ous,  and  are  such  as  to  con- 
vince the  mind  of  his  guilt.  The  evidence  shows  that  the  de- 
ceased was  a  young  unmarried  man,  living  with  his  father  in 
Schuyler  county,  Missouri;  that  ])laintiff  in  error  lived  a  short 
distance  away,  and  was  above  middle  age,  his  hair  and  beard 
being  quite  gray.  Deceased  was  the  owner  of  a  span  of  mules, 
wagon,  and  harness,  and  about  .^100  in  money,  besides  some 
personal  property  in  the  way  of  farming  implements.  By  rea- 
son of  certain  representations  plaintiff  in  error  induced  young 
Yoorhees  to  accompany  him  with  the  projjerty,  to  Nebraska, 
leaving  home  on  the  28th  of  November,  187S.  These  repre- 
sentations consisted  in  a  flattering  description  of  the  beauties 
of  Nebraska,  with  the  further  suggestion  that  plaintiff  in  error 
was  the  owner  of  a  farm  in  this  state,  on  which  a  crop  of  corn 
was  sliuuling,  which  would  furnish  plenty  of  feed  for  the  team 
of  deceased,  and  which  would  be  at  his  service.  Thoy  did  not 
leave  the  home  of  deceased  together,  but  agreed  to  meet  at  a 
point  a  short  distance  on  the  way.  Plaintiff  in  error  was  a 
larger  man  than  deceased.  Deceased  took  with  him  a  quantity 
of  under-clothing,  and  other  articles  of  proi)erty,  which  were 
placed  in  an  ordinary  l»0()t  box  and  put  into  the  wagon.  Among 
the  articles  taken  by  deceased  was  an  "  S"  wrench,  for  use 
about  the  wagon,  which  was  given  him  by  his  father,  who, 
before  putting  it  in  the  wagon,  made  upon  it  three  j.rivate 
marks  with  a  hand-saw  tile.  Soon  after  this  time  deceased  wjis 
seen  in  Meatrice  in  comi)any  with  another  person,  who  is  not 
fully  identified  as  the  plaintiff  in  error,  but  whose  peculiar 


mw 


m. 


510 


AMERICAN  CRIMINAL  REPORTS. 


motions,  and  the  manner  in  which  he  wore  his  hat,  were  de- 
scribed as  similar  to  the  accused. 

Plaintiff  in  error  soon  afterwards  (about  Christmas,  1878)  re- 
turned to  Missouri  alone.  In  a  conversation  with  one  of  the 
w^itnesses,  with  whom  he  had  not  been  previously  acquainted, 
he  stated  that  he  had  been  to  Nebraska  and  Kansas.  He  did 
not  go  home,  but  went  to  work  about  thirty  miles  from  there, 
at  a  saw-mill,  hauling  railroad  ties  with  a  team  and  wagon 
which  he  had,  but  which  were  not  the  team  and  wagon  for- 
merly owned  by  Yoorhees.  He  secured  a  boarding-place  for 
himself  and  team,  but  declined  sleeping  in  a  bed,  preferring  to 
sleep  on  the  floor  near  the  fire,  with  no  bedding  but  his 
blankets,  and  without  removing  his  clothing.  He  appeared  to 
be  watchful,  wakeful,  uneasy  and  suspicious.  During  the  night 
he  often  went  out,  waking  the  family,  and  when  spoken  to 
about  his  conduct  he  gave  as  a  reason  that  he  bad  recently 
traded  a  sjian  of  mules  for  the  team  he  then  had,  and  that  one 
of  his  horses  was  inclined  to  be  fractious,  and  lie  was  uneasy 
about  them.  He  had  a  boot-box  in  which  his  clothing,  etc., 
were  kept.  Part  of  his  under-clothing  was  noticed,  by  the 
woman  who  did  his  washing,  to  be  much  smaller  than  his  other 
garments  of  the  same  kind,  and  at  each  time  they  were  washed 
had  to  be  mended,  having  the  appearance  of  being  "  bui'sted." 
He  disposed  of  some  property  in  the  neighl)<)rhood,  among 
which  was  the  identical  "  S  "  wrench  furnished  young  Yoor- 
hees by  his  father.  This  wrench  was  produced  in  court  and 
fully  identified  by  the  father.  The  man  with  whom  he  boarded 
was  in  the  habit  of  arising  at  4  o'clock  in  the  morning;  it 
being  in  the  winter,  it  was  not  yet  light.  He  testifies  that 
plaintiff  in  error  was  always  up  before  him  and  generally  at 
the  barn;  that  when  the  witness  went  to  the  barn,  plaintiff  in 
error  would  always  hail  him  and  ask  who  was  there.  It  was 
the  custom  of  the  person  hiring  the  men  to  haul  ties  to  pay 
them  at  the  end  of  the  montli,  but  plaintiff  in  error  insisted 
upon  collecting  his  wages  at  the  close  of  each  day.  He  re- 
mained there  from  about  CJhristmas  until  in  March,  1879,  fol. 
lowing.  During  this  time  he  went  away  twice  to  see  liis 
family,  who  lived  near  the  former  home  of  Yoorhees,  and 
about  thirty  miles  distant,  making  the  trip  in  the  night.  When 
asked  by  those  who  knew  of  his  having  left  Missouri  with 


BRADSHAW  v.  STATE. 


611 


at,  were  de- 

las,  1878)  re- 
1  one  of  the 

acquainted, 
sas.     He  did 
i  from  there, 
L  and  wagon 
I  wagon  for- 
ing-place  for 
preferring  to 
ling  but  his 
I  appeared  to 
ing  the  night 
m  spoken  to 
had  recently 
and  that  one 
e  was  uneasy 
clothing,  etc., 
ticed,  by  the 
han  his  other 
wore  washed 
ig  "  bursted." 
hood,  among 
voung  Voor- 
in  court  and 
ni  he  boarded 
3  morning;  it 

testifies  that 

gtMierall}'  at 
n,  |)laintilf  in 

lore.  It  was 
i\  ties  to  ])ay 
3rror  insisted 

day.  lie  re- 
rch,  1879,  fol. 
ze  to  see  his 

oorhees,  and 

night.  AVhen 
Missouri  with 


young  Voorhees  as  to  what  had  become  of  Voorhees,  his  state- 
ments were  very  contradictory.  To  seme  he  said  deceased  had 
left  him  at  a  camping-place,  in  the  night,  without  taking  his 
clothing,  and  without  any  intimation  that  he  was  going;  and 
he  had  never  heard  from  him  since.  And,  when  asked  what 
he  had  done  with  the  team  and  wagon  belonging  to  deceased, 
he  replied  that  he  had  traded  it  off,  as  Henry  Voorhees'  father 
would  have  taken  them  away  from  him.  To  others,  he  said 
deceased  had  sold  his  team  in  Kansas,  and  had  gone  to  Texas 
to  herd  and  drive  cattle  on  the  plains ;  that  he  had  hired  to 
some  cattle-men  for  that  purpose.  He  stated  to  some  that  he 
did  not  like  "  old  man  Voorhees,"  and  had  long  desired  to  get 
even  with  him,  and  that  he  had  now  succeeded ;  that  he  had 
enticed  his  boy  Henry  away  from  him,  and  he  would  never 
hear  of  him  again.  In  the  evening  of  the  last  day  he  worked 
hauling  ties,  ho  was  informed  that  a  man  had  been  inquiring 
for  him  in  the  vicinity,  when  he  immediately  hitched  up  his 
team  and  left,  without  waiting  to  eat  supper,  and  was  seen  there 
no  more.  lie  a]>peared  in  the  neighborhood  where  the  father 
of  Voorhees  resided,  near  his  own  home,  and  inquired  of  a 
neighbor  as  to  what  i)eople  thought  had  become  of  deceased; 
and  upon  being  informed  that  it  was  believed  he  had  nmrdered 
hira,  he  recpiested  that  nothing  be  said  about  his  presence  until 
9  o'clock  next  day.  by  which  time  ho  could  make  his  escape 
into  Iowa.  In  this  connection  he  stated  he  had  left  deceased 
on  the  Alissouri  river,  where  he  was  teaming,  and  that  he  was 
then  corresponding  with  him;  looked  in  his  pocket-book  as 
if  hunting  for  the  letters,  and  then  said  he  had  left  them  at  his 
hoarding-place.  This  was  the  last  seen  of  him  by  any  of  the 
witnesses  until  his  capture  in  Council  Bluffs,  and  incarceration 
in  jail  at  Beatrice.  After  his  arrest  and  confinement,  he  sought 
to  render  his  identity  uncertain  by  coloring  his  hair  and  having 
his  beard  cut  off,  and  afterwards,  when  visited  in  the  jail  by 
those  with  whom  he  was  well  acquainted,  he  denied  his  identity. 
The  identity  of  the  dead  body  found  in  (rage  county  in  the 
early  spring  of  1879,  as  the  body  of  Henry  Voorhees,  is  beyond 
any  question.  A  "  tattoo  "  mark,  "  H.  C.  V.,"  upon  his  arm,  as 
well  as  a  correct  photographic  likenesb  of  the  dead  body,  which 
was  identified  by  his  father  and  others,  place  the  question  of 
identity  beyond  any  {juestion.    It  is  also  shown  that  he  came 


BW 


512 


AMERICAN  CRIMINAL  REPORTS. 


to  his  death  by  external  violence ;  and,  by  wagon  tracks  in  the 
prairie  grass,  it  is  shown  that  the  body  was  placed  where  it  was 
found  by  some  one  seeking  to  conceal  it. 

The  evidence,  only  a  part  of  which  is  here  reviewed,  is  suffi- 
cient to  sustain  the  verdict.  From  a  full  examination  of  the 
case,  such  as  its  great  importance  requires,  we  are  satisfied  that 
justice,  so  long  delayed,  has  been  done,  and  that  there  is  no 
such  error  in  the  record  as  to  require  a  reversal  of  the  judg- 
ment.   It  is  therefore  affirmed. 

(The  other  judges  concur.) 


Williams  v.  State. 


(64  Md.,  384.) 

Mukder  :  Malice  —  Evidence  —  Physical  condition  of  deceased — Post-mor- 
tem examination  —  Expert  testimony. 


1.  Brutal  conduct  of  accused  — Physical  condition  of  deceased.— 
In  a  trial  for  murder  it  is  competent,  as  bearing  upon  the  question 
of  malice,  to  prove  brutal  conduct  of  the  prisoner  toward  the  deceased 
for  several  days  previous  to  the  death,  and  may  follow  up  this  evi- 
dence by  showing  that  deceased  was  in  ordinary  health  before,  .and 
that  he  complained  of  pains  after,  the  assault. 

3.  Evidence  —  PosT-MOUTEM  EXAMiNvnoN.— The  mere  fact  that  a  post- 

mortem examination  was  made  some  time  after  death  is  no  reason  in 
itself  for  its  exclusion  as  evidence.  If  the  body  is  in  such  a  state  of 
preservation  that  the  jury  can  judge  whether  its  condition  was  caused 
hj  ante  ov  post  mortem  injuries,  such  ex.'imination  is  competent  evi- 
dence. 
8.  EIXPERT  TESTIMONY.— What  would  be  the  effect  of  violent  pressure  with 
the  foot  upon  the  neck  of  a  man  in  a  given  position  is  competent 
expert  testimony. 

4.  Hypothetical  case  —  How  framed.—  In  framing  a  hypothetical  ques- 

tion, the  state  is  not  required  to  set  forth  all  the  facts  and  circum- 
stances of  the  case,  the  defense  having  the  riglit  to  introduce  any 
circumstance  omitted. 

6.  Opinion  as  to  instrument  infuctinq  wound.  — An  expert  may  give 
an  opinion  as  to  the  manner  of  instrument  by  which  an  injury  wtis  in- 
flicted. 

6.  Opinion  on  facts.- An  expert  may  give  .-in  opinion  upon  a  statement 
of  facts  assumed  to  be  in  evidence,  but  not  upon  the  conclusions  or 
inferences  of  another  witness. 


racks  in  the 
yhere  it  was 

wed,  is  suffi- 
ation  of  the 
jatisiied  that 
there  is  no 
of  the  judg- 


sed— Porf-mor- 


[)F  DECEASED.— 
m  the  question 
rd  thf*  deceased 
[ow  up  this  evi- 
1th  before,  and 

ct  that  a  post- 

is  no  reason  in 

such  a  state  of 

lion  was  cauaod 

competent  evi- 

it  pressure  with 
u  is  competent 

pothetical  ques- 
ts and  circuni- 
introduce  any 

Xpert  may  K'^^ 
1  injury  wius  in- 

»on  a  statement 
u  conclusions  or 


WILLIAMS  V.  STATE. 


513 


Appeal  from  Circuit  Court,  Somerset  County. 

./.  W.  Crinjield,  Thos.  S.  Hodsm  and  Ilemj  f<-'9'',  for  ap- 
])ellant. 

Charles  B.  Jioherts,  attorney-general,  for  appellee. 

Robinson,  J.  The  prisoner,  the  captain  of  an  oyster  boat, 
was  tried  for  the  murder  of  Otto  Mayer,  one  of  the  hands 
under  his  employment.  The  (piestion  presented  by  the  first 
exception  is  whether  it  was  competent  for  the  state  to  prove 
tliat  on  the  day  before  the  fatal  assault,  and  several  days  prior 
thereto,  the  prisoner  had  beaten  and  otherwise  maltreated  the 
deceased.  The  charge  of  murder  against  the  prisoner  neces- 
s;u'ily  involved  the  question  of  malice,  for  there  must  bo 
malice,  express  or  implied,  to  constitute  murder.  As  bearing, 
thou,  upon  this  question,  the  evidence  was  clearly  admissible, 
lu  the  absence  of  evidence  tending  to  show  justification,  ex- 
cuse or  extenuation,  malice.,  it  is  true,  may  l>e  presumed  from 
the  proof  of  the  homicide  itself;  but  the  state  is  not  bound  to 
rely  upon  this  presumption,  and  may  offer  other  and  inde- 
pendent evidence  tending  to  prove  malice,  and  this,  too,  with- 
out regard  to  the  evidence  olfered  or  defense  set  up  by  the 
accused.  Having  proved  the  prisoner  had  assaulted  and 
beaten  the  deceased  in  the  most  cruel  and  inhumjin  manner 
just  before  the  day  of  the  fatal  assault  charged  in  the  indict- 
ment, the  state  had  the  right  to  follow  up  this  evidence  and 
show  that  prior  to  these  assaults  Mayer  was  in  ordinary 
health,  and  that  afterwards  he  complained  of  pains  in  his  head 
and  breast,  and  that  he  continued  to  complain  up  to  the  day 
of  the  homicide.  To  sustain  the  indictment,  the  state  was 
liound  to  prove  that  Mayor  died  from  blows  and  injuries 
iiiHieted  by  the  prisoner,  and  in  the  determination  of  this 
question  the  physical  condition  of  Mayer  at  the  time  these 
injuries  were  inflicted  was  a  material  in(iuiry.  An  injury  that 
may  prove  fatal  to  one  already  enfeebled  and  suffering  from 
great  bodily  pain  may  not  prove  so  to  one  in  robust  and 
vigorous  healtli.  The  ruling  of  the  court  in  the  fourth  exce[)- 
tiun  is,  Ave  think,  one  equally  free  of  difficulty. 

The  proof  shows  that  on  the  morning  of  the  Sath  of  Novem- 
ber, the  deceased  being  unwell,  the  prisoner  gave  him  some 
uiodicine;  that  he  attempted  to  work,  but  being  unable  to  work, 
Vol.  V  — aa 


514 


AMERICAN  CRIMINAL  REPORTS. 


or  because  his  work  was  not  satisfactory,  the  prisoner  heat 
him  five  or  six  different  times  across  the  back  and  sides  witli  a 
shovel  or  hand-spike.  That  evening  the  deceased  complained 
of  pains  in  his  back  and  breast  and  cried  out,  " My  God!  ^[y 
God!"  and  said  he  Avas  sore  all  over.  The  next  morning  tlio 
deceased  again  tried  to  work,  but,  being  unable  to  wind  uj) 
the  anchor,  one  of  the  hands  jerked  it,  and  Mayer  fell  upon 
the  deck.  "While  lying  there  the  prisoner  came  up  and  kicked 
him  several  times,  and  every  time  Mayer  shrieked  the  prisoner 
pressed  his  foot  heavily  on  his  tliroat.  After  these  brutal 
assaults,  the  prisoner  tied  a  rope  around  the  body  of  Mayer, 
and,  fastening  the  rope  to  a  hook  in  the  front  sail,  dragged 
him  from  one  end  of  the  boat  to  the  other.  The  deceased 
again  promised  to  woi'k,  but  he  was  very  weak,  and  in  tlie 
attempt  to  turn  the  crank  of  the  dredge  he  fell  lengthwise 
across  the  deck,  and  while  lying  thei'e  the  prisoner  again 
kicked  him  five  or  six  times,  and  again  pressed  his  foot  on  his 
neck.  The  prisoner  then  tied  the  thumbs  of  the  deceased  witli  a 
rope,  and  by  the  means  of  a  hook  fastened  to  the  rope  the  l)()dy 
of  the  deceased  was  hoisted  until  his  feet  were  above  the  deck. 
After  this  the  deceased  was  put  into  a  yawl-boat  and  landed 
on  the  shore,  where,  a  few  hours  afterwards,  he  died.  Tlie 
next  day  a  jury  of  inquest  was  summoned,  and  Dr.  Gill  made 
an  external  examination  of  the  neck  of  the  deceased,  in 
moving  the  head  and  neck  backwai'd  and  forward  he  at  first 
thought  he  heard  a  crepitation,  indicating  the  neck  was  bioken, 
but  not  hearing  the  sound  again,  he  concluded  he  must  have 
been  mistaken,  and  was  of  the  opinion  that  the  neck  was  not 
broken.  Thus  ended  this  imperfect  and  unsatisfactory  exami- 
nation, and  the  body  was  buried.  On  the  27th  of  December, 
one  month  afterwards,  the  prisoner  was  arrested,  and  a  second 
jury  of  inquest  was  summoned,  and  for  the  firet  time  a  thor- 
ough post-mortem  examination  of  the  body  was  made  by  Dr. 
Miles.  The  result  of  this  examination,  showing  that  the  neck 
was  broken,  and  that  large  dark-colored  patches  or  bruises 
were  found  on  various  parts  of  the  body,  was  ofl'ered  in  evi- 
dence; but  objection  was  made  to  its  admissibility  on  the 
ground  that  the  condition  of  the  body  one  month  after  the 
deceased  was  buried  was  not  hnjitiviate  eviflence  from  which 
the  jury  could  reasonably  infer  its  condition  at  the  time  he 


(risoncr  beat 
[  sides  with  a 
I  complained 
tvGod!  My 
morning  the 
»  to  wind  up 
'cr  fell  upon 
ip  and  kicked 
1  the  prisoner 
these   brutal 
ly  of  flayer, 
sail,  dragged 
The  deceased 
:,  and  in  the 
dl  lengthwise 
risoner  again 
tiis  foot  on  liis 
cceascd  witlia 
rope  the  body 
bove  the  deck. 
,t  and  landed 
lie  died.     Tlie 
Dr.  Gill  made 
deceased.     In 
rd  he  at  lirst 
^.k  was  brolcen, 
he  must  have 
neck  was  not 
factory  oxami- 
of  December, 
,  and  a  second 
,t  time  a  thor- 
made  by  Dr. 
that  the  node 
les  or  bruises 
otTered  in  evi- 
ibility  on  tlie 
inth  after  tlic 
)e  from  which 
t  the  time  he 


WILLIAMS  V.  STATE, 


615 


died.  A  thorough  examination  made  immediately  after  death 
would,  of  course,  have  been  more  satisfactory  and  conclusive 
than  one  made  some  time  afterwards.  Rut  the  weight  of  the 
evidence  was  a  matter  for  the  jury,  to  be  determined  by  them 
in  connection  with  all  the  facts  and  circumstances  in  the  case. 
The  mere  fact  that  the  examination  is  made  some  time  after 
death  is  not,  in  itself,  a  reason  why  the  result  of  such  exami- 
nation should  be  excluded,  unless  the  interval  is  so  great,  and 
the  condition  of  the  body  is  such,  that  the  jury  could  not  rea- 
sonably find  whether  its  condition  was  to  be  attributed  to  ante- 
rnortem  or  post-mortem  causes,  and  such  was  not  the  case  here. 
The  weather  was  cold,  and  decomposition  had  just  set  in.  No 
diflRculty  was  experienced  by  the  physician  in  making  the  ex- 
amination. He  first  began  by  making  an  external  examina- 
tion, moving  the  head  and  neck,  and  heard  distinctly  a 
crepitation  of  the  bones  of  the  neck,  showing  the  neck  was 
broken.  lie  then  made  an  incision  in  the  neck,  and  found 
there  was  a  dislocation  between  the  bones  known  as  the  "  atlas  '* 
and  "  axis,"  an  injury  which  was,  in  his  opinion,  fatal.  Large 
dark  patches  were  also  found  on  different  parts  of  the  body. 
If  this  evidence  was  not  conclusive  as  to  the  condition  of  the 
body  at  the  time  it  was  buried,  it  was  certainly  legitimate 
evidence  to  be  considered  by  the  jury  in  determining  that 
question. 

In  the  sixth  exception  objection  is  made  to  the  following 
question:  "Suppose  a  man  should  be  lying  on  the  ground 
prostrate,  and  another  should  place  his  foot  upon  his  neck,  and 
squeeze  or  bear  down  violently  upon  it,  would  any  result  fol- 
low, and  what  would  be  that  result  to  the  neck?"  The  ]iroof 
shows  the  prisoner  not  only  pressed  his  foot  on  the  neck  of  the 
(leceased  while  he  was  lying  on  the  deck  of  the  boat,  but  also 
afterwards,  while  he  was  lying  on  the  shore,  and  just  before  he 
died;  and,  further,  that  when  the  examination  was  made  by 
Dr.  Miles  he  found  the  neck  was  broken.  Was  this  dislocation 
of  the  neck  caused  by  the  ])ressure  of  the  prisoner's  foot  on 
the  neck  of  the  deceased,  was  the  question  to  be  determined ; 
and  this  depended  upon  the  strength  of  its  parts,  and  their 
power  to  resist  violence,  involving  necessarily  the  anatomy 
of  the  neck,  and  strictly  within  the  rule  in  regard  to  expert 
testimony.     AYe  see  no  objection  to  the  form  of  the  interroga- 


?F 


516 


AMERICAN  CRIMINAL  REPORTS. 


sr 


tory.  If  a  wound  is  proven,  an  expert,  it  is  conceded,  may 
state  the  means  by  which  it  was  inflicted.  If  so,  the  convci'se 
of  the  proposition  is  equally  true.  What  would  be  the  prob 
able  effect  of  a  man's  pressing  his  foot  with  great  force  or 
violence  on  the  neck  of  one  lying  on  the  gi-ound,  depended,  of 
courae,  upon  the  pressiu'e  used,  and  tlie  strength  of  the  neck 
to  resist  it, —  matters  in  regard  to  which  an  expert  ought  to  be 
better  able  to  form  a  judgment  than  ordinary  witnesses. 

As  to  the  seventh  exception,  the  proof  shows,  not  only  that 
the  prisoner  beat  the  deceased  with  a  liand-spike  or  shovel  no 
less  than  five  or  six  times,  but  that  afterwards  he  had  what 
the  witness  tei'ined  "^a  snatching  chill."  This  evidence  was 
sufficient,  certainly,  to  sei'v<}  as  a  basis  for  the  hypothetical 
question  put  to  the  witness.  It  was  wholly  unnecessary  in 
framing  the  question  to  refer  to  all  the  evidence  bearing  upon 
Mayer's  condition  before  and  at  the  time  he  had  the  "  snatching 
chill."  The  defense  bad  the  right,  on  cross-examination,  to 
inquire  how  far  and  to  what  extent  tlie  opinion  of  the  witness 
would  be  modified  by  the  consido'ation  of  other  facts  omitted 
from  the  hypothetical  i|uestion. 

In  the  eighth  exception.  Dr.  J)nle,  witness  for  the  prisoner, 
testified  he  made  a;i  examination  of  the  l»ody  on  tlie  ■Jl'tli 
December,  two  days  aftoi*  the  examination  of  Dr.  Miles;  that 
he  found  an  incision  hetween  the  base  of  the  occijuit  and  tiio 
atlas,  which  had  seveced  all  the  posterior,  and  part  of  the 
lateral,  ligaments  and  muscles  that  unite  the  atlas  and  the  oeci* 
put;  that  he  found  no  other  injury  about  the  neck;  that,  in  liis 
opinion,  the  neck  was  not  dislocated,  and,  further,  that  such 
injury  could  not  have  been  produced  by  the  i)ressur(^  of  the 
foot  of  man  on  the  neck.  The  attorney  for  the  state  tlioii 
asked  the  following  question:  '•Could  all  the  posterior,  and  a 
portion  of  the  lateral,  muscles  and  ligaments  connecting  tlio 
atlas  with  the  occiput  be  severed  as  you  saw  them  by  accident, 
or  must  such  severance,  if  it  existed,  have  necessarily  been 
produced  by  design  ? "  It  is  well  settled  that  an  expert  may 
give  an  opinion,  not  only  as  to  the  nature  and  effects  of  an 
injury,  but  also  the  manner  or  instrument  b}'  which  it  was  in- 
flicted ;  and  such  we  understand  to  have  been  the  purpose  of 
this  inquiry,  although  the  answer  of  the  witness  is  not  set  forth 
in  the  record.     We  see  no  objection  to  the  question,  although 


%"■ 


■r?.'il:. 


^ 


EPPS  V.  THE  STATE. 


517 


loncedod,  may 
»,  the  convi'i'sw 
d  be  the  prob- 
jreat  force  or 
,  dejjended,  of 
h  of  the  neck 
?rt  ought  to  be 
itnesses. 
,  not  only  that 
e  or  shovel  no 
5  he  had  what 

evidence  was 
e  hypothetical 
nnneccssaiy  in 
3  bearing  upon 
the  "  snatching 
examination,  to 

of  the  witness 
n*  facts  oniitttMl 

br  the  i)risonor, 
V  on  the   'Mh 
)r.  Miles;  that 
occi[)ut  and  tlio 
nd   jiart  of  tlio 
as  and  the  oc-ck 
eck;  tliat.  in  his 
tlior,  that  siicli 
n'('ssur(>  of  till' 
the  state  tlioii 
»osterior.  and  a 
connecting  tli(* 
em  by  accident, 
lecessarily  been 
an  expert  may 
id  effects  of  an 
which  it  was  in- 
the  purpose  of 
is  not  set  forth 
istion,  although 


wc  must  confess,  in  view  of  all  the  evidence,  its  bearing  upon 
the  issue  before  the  jury  seemed  to  us  quite  remote  and 
sliadowy. 

In  tlie  ninth  and  last  exception  the  counsel  for  tlie  prisoner 
proposed  to  ask  Dr.  Kobertson  the  following  question:  "The 
nock  of  the  deceased,  upon  Ijcing  examined  by  a  physician,  is, 
together  with  the  head,  worked  for  ten  or  fifteen  minutes  in 
all  directions,  by  a  person  acting  under  the  orders  of  the  physi- 
cian, for  the  purpose  of  producing  crepitation ;  tlie  physician 
hears  a  single  sound,  wliich  he  afterwards  testified  was  cre[)i- 
tation,  but  the  person  having  the  head  and  neck  in  his  hands, 
and  otiiers  who  were  in  a  position  to  hear  any  such  sound, 
failed  to  hear  the  same;  and,  after  so  working  the  head  and 
neck  for  that  length  of  time,  the  physician  said 'I  was  mis- 
taken,—  the  neck  is  not  broken,' and  no  further  crepitation 
was  heard  or  pro(hiced  in  the  neck  during  the  said  examina- 
tion. What  would  be  your  t>pinion  as  a  physician  as  to  the 
fracture  or  dislocation  of  the  neck  r'  Now,  wiiile  an  expert 
may  give  his  opinion  upon  facts  assumed  to  have  been  estab- 
lished, it  would  be  against  every  rule  and  principle  of  evidence 
to  allow  him  to  state  his  ()}iini(jn  upon  the  conclusions  and  in- 
ferences of  other  witnesses.  Here  the  witness  was  not  asked 
his  opinion  in  regard  to  the  dislocation  of  the  neck  of  the  de- 
ceased b(t.se(l  K/HHi  flu  failui'i,  of  Dr.  GUI,  who  conducted  the 
ijaa  ml  nation,  to  prodnre  crepitation,  but  based  also  upon  the 
conclusions  reached  by  iJr.  (rill  in  regard  to  the  subject-matter 
of  iiupiiry.  For  this  reas<,>ii  the  question  was  clearly  objection- 
able. Finding  no  error  in  the  several  exceptions  relied  on,  the 
rulings  will  be  aflirmed,    llulings  allirmed,  and  cause  remanded. 


Epps  v.  The  State. 


(102  Ind.,  539.) 

MuRDEn :  Indictmen t  —  Motion  to  quash  —  Poifion  —  Plea  —  Juror  —  Hu- 
man being — Coroner's  inquest  —  Expert  testimony  —  Misconduct  of 
counsel  —  Instructions  —  Misconduct  of  jui'y. 

1.  Rkturn  of  indictment. — Wlioie  it  appears  from  the  record  that  an 
indictment  was,  on  a  certain  clay,  returned  into  open  court  by  the 
grand  jury,  indorsed  "  a  true  bill "  by  their  foreman,  the  return  is  suf- 
ticicntly  shown. 


518 


AMERICAN  CRIMINAL   REPORTS. 


2.  Motion  to  quash.— Where  the  record  discloses  enough  to  authorize  thei 
inferenci^  that  the  indictment  waa  duly  returned  by  a  lawfully  orKaii- 
ized  grand  jury  for  the  term  at  wlii(!h  it  was  luesentod,  it  is  suiTicitint, 
in  that  res{)ect,  un  a  motion  to  (|uash. 

:;.  Murder  by  auhenic.— In  an  indictment  charging  murder  by  tlu^  ad- 
ministration of  arKcnic,  the  precise  amount  of  the  arsenic  is  immaterial, 
if  the  facts diaigcd  show  that  it  was  the  iK)ition  which  caused  the  dtiath. 

4.  Absence  or  tkisoner  on   motion  to  quahh   inuiotment.— It  is  not 

error  to  hear  argument,  on  a  motion  to  ([uash  an  indictment,  in  thu 
absence  of  the  prisoner. 

5.  Withdrawal  of  tlea.—  In  tlie  absence  of  a  showing  of  cause,  the 

granting  or  withholding  leave  to  withdraw  a  plea  of  not  guilty  re.st«  in 
the  discretion  of  the  trial  court. 

6.  Qualifications  of  jukou.— Much  rests  in  the  discretion  of  the  trial 

court  as  to  what  (juesticms  may  or  may  not  be  answered  by  a  |)erHoii 
called  as  a  juror,  touching  his  (lualiiications  to  serve,  but  great  latitudti 
ought  to  be  allowed. 

7.  Human  being. —  In  a  pros(>ciition  (or  nunder  it  is  unntices.sary,  but  liarm- 

les.;  to  the  accused,  to  i>rove  that  the  deceiuscd  was  a  human  being. 

8.  Signature  of  witness  at  couoneu's   inquest.  — Where  one  who  is 

subsecjuently  indicted  for  the  murder  of  tht!  deceased  voluntarily  ttwti- 
lies  as  a  witness  at  the  coroner's  iiKjuest  concerning  the  death  of  such 
deceased,  it  is  his  duty  to  attest  his  statement  by  his  signature,  aud 
such  statement,  if  it  beiromcs  relevant  and  material,  may  be  read  in 
evidence  against  him  at  his  trial. 

9.  Physician  may  state  that  he  oave  same  kind  op  drug  to  anotiirk 

person  without  IN.JURY.—  Wlune  the  physician  who  attendcid  ih' 
decciised  in  his  la.st  illness  administered  bismuth  to  him,  and  the  (luiw- 
tion  is  made  whether  it  might  not  have  contained  arsenic,  he  may  ttw- 
tify  that  he  afterwards  gave  the  same  kind  of  bisnmth  U>  another 
patient  without  injury,  and  it  may  also  be  shown  that  a  chemi.st  whd 
analyzed  bismuth  from  the  same  package  found  no  traces  of  arsenic 
in  it. 

10.  Medical  books  are  not  admissible  as  testimony. 

11.  Exi'ERT  TESTiMt)NY.— Where  a  physician,  testifying  as  an  exjKirt,  ex- 

presses the  opinion,  uimjii  a  hypothetical  ciuse,  that  the  doccjised  caiuii 
to  his  death  by  arsenical  poison,  he  may  properly  be  asked,  in  Ixdialf  of 
the  accused,  whether  his  conclusion  is  one  of  certainty  or  only  of  liigh 
probability,  but  the  refusal  of  the  court  to  permit  the  (juestion  may  not 
be  available  <>rror  in  theMight  of  other  exi)ert  testimony. 

12.  Misconduct  of  counsel.— For  misconduct  of  counsel  for  the  state  in 

argument  held  not  suHicient  to  justify  the  reversal  of  the  judgniont, 
when  considered  in  connection  with  interruptive  denials  of  counsol  for 
the  accused  and  the  prompt  disapproval  of  the  cotu't,  see  ojjinion. 

13.  An   in.stru(;ti()N    which   is  good  as  a  whole  cannot  )xi  attac;ke(l  in 

part. 

14.  An  instruction  given  in  connection  with  proper  illustrations  and  pre- 

cautions, that  the  accused's  guilt  might  Ije  established  by  circumstan- 
tial evidence  alone,  is  good. 


EPPS  V.  THE  STATE. 


519 


I  to  authorize  th« 
i  lawfully  orsaii- 
»d,  it  is  sufticiont, 

mrder  by  thu  iul- 
;nic  ia  iinniatorial, 
I  caused  tlio  ddatli. 
MKNT.—  It  is  not 
iidictiuont,  iu  tho 

ing  of  cause,  tlie 
not  guilty  rostii  in 

letion  of  the  trial 
iwercd  by  a  person 
,  but  great  latitudti 

Hiessary,  but  harin- 
ii  human  buiiiK. 
Vhero  one  who  ia 
)d  voluntarily  ti«ti- 
;  tho  death  of  Kucii 
his  8itj;nature,  aud 
ial,  may  be  read  in 

P  DBUO  TO  ANOTIIKR 

who  atteiuhid  Uii^ 
liim,  and  the  <iui'v 
ivsenic,  lie  may  Uw- 
)i.smuth  ti>  anotlitT 
that  a  ehemirtt  who 
no  tracers  of  arHonic 


g  as  an  oxjiert,  ox- 
the  deceased  ciiut! 
iisked,  in  btihalf  of 
iiity  or  only  of  lugl' 
lie  question  may  not 
m<my. 

nsel  for  the  slate  i» 
al  of  the  judj^nu'.nl, 
cnials  of  counsid  for 
nirt,  SCO  oi>inion. 
not   1x1  iittaidted  in 

llustrations  and  pn - 
shed  by  circuinstan- 


15.  An  instruction  that  testimony  can  only  be  rejected  because  it  is  not 

true,  and  that  when  the  evidence  is  irreconcilably  conflicting  that 
whieh  is  false  must  bo  rejected,  is  abstractly  correct. 

16.  Cumulative  instuuctions  —  It  is  not  error  to  refuse  instructions  which 

are  merely  cumulative. 

17.  Mlscx)NDUCT  OK  JL'KY. —  Where  tlie  trial  court  hears  evidence  upon  a 

question  of  jnisconduct  of  the  jtny,  its  decision  on  that  question  will 
not  be  disturbed  by  the  supreme  court  on  what  may  seem  to  be  the 
weight  of  tho  evidence. 

From  the  Huntington  Circuit  Court. 

A.  Moore,  L.  P.  Boi/U  and  Z.  Daix/an,  for  appellant. 
F.  2\  Ilord,  attorney-general,  C.  W.  Watlclm  and  J.  C.  Bran- 
i/(tn,  for  the  state. 

NiuLACK,  J.  The  appellant,  Charlot'.e  Epps,  was  indicted, 
tried  and  convicted  for  tiie  murder  of  lier  husband,  John  Epps, 
aiul  sentenced  to  imprisonment  for  life. 

Though  somewhat  informally  exi^'essed,  the  record  before 
us  sliows  that  the  indictment  in  this  case,  known  then  as  num- 
ber 209,  was,  on  the  fourth  judicial  day  of  the  October  term, 
lsS'?,of  the  Huntington  circuit  court,  returned  into  o]ien  court 
l)y  the  grand  jury  of  Hujitingt«)n  county,  indorsed '' a  true 
hill"  l)y  their  foreman,  and  that  was  enough  to  show  a  proper 
rotin-n  of  the  indictment.     //<,(//(   v.  State,  101  Ind.,_512. 

Tlie  indictment  was  in  three  counts,  each  charging  murder 
in  tlie  lii'st  degree  by  means  of  arsenical  poison.  The  first 
count,  after  making  the  usual  and  formal  preliiniuary  recitals, 
cliarged  the  appelhmt  witii  having,  on  the  <ith  day  of  June, 
jss;',,  killed  iuid  murdered  the  deceased  by  unlawfully,  feloni- 
ouslv,  wilfuUv  and  maliciouslv  administering  "to  him,  the  said 
John  Epps,  a  certain  deadly  poison,  to  wit,  a  poison  commonly 
called  arsenic,  which  he,  the  said  .lohn  Ep})s,  then  and  there 
received  at  the  hands  of  her,  the  said  Charlotte  Epps,  and 
which  lie,  the  said  John  Ei>ps,  then  and  there  swallowed,  and 
by  reason  of  which  he,  the  said  John  Epi)s,  then  and  there  and 
thereby  di(!d,"  etc.  The  other  counts  charged  substantially 
the  same  offense,  but  not  precisely  in  the  same  language.  In 
neither  was  it  averred  what  amount  of  arsenic  was  adminis- 
tered to  the  deceased. 
The  appellant  moved  to  quash  the  indictment,  first,  because 


520 


AMERICAN  CRIMINAL  REPORTS. 


the  record  did  not  set  out  the  names  of  tlie  grand  jurors  \vli<> 
returned  the  indictment,  or  show  tlio  term  for  wiiich  such 
grand  jury  was  impaneled,  and  did  not  make  it  appear  aflinu- 
atively  that  the  person  who  indorsed  the  indictment  as  •'  a 
true  bill"  was  in  fact  the  grand  jury's  "foreman,"  as  he  pur- 
ported to  be;  and  sec<mdly,  because  the  amount  of  arsenic 
alleged  to  have  been  administered  was  not  averred,  uj)on  tiio 
ground  that  it  was  necessary  to  sliow  that  tlie  amount  used 
was  sufficient  to  produce  death.  The  motion  to  quash  was 
nevertheless  overruled,  and  in  tluit  i-espect  no  error  is  a[)piir- 
ent.  The  record  discloses  enougli  to  authorize  the  inference 
that  the  indictment  was  duly  returned  by  a  hiwfully  organizctj 
grand  jury  for  the  term  at  which  it  was  prcstmted.  Moore. 
Crim.  Law,  sec.  472:  Poiiyrn  v.  Sfo.te,  87  Ind.,  11-4 ;  Heath  r. 
State,  101  Ind.,  512. 

The  further  inference  from  tlie  facts  charged  in  eacli  couiii 
of  the  indictment  necessarily  was,  tluit  it  wus  the  arsenic  lu!- 
ministcred  to  the  deceased  which  catised  his  death,  and,  in  tha; 
view,  the  precis(!  amount  so  administered  was(juite  immaterial. 
Sn >/</<■/•  V.  State,  .50  Ind.,  105. 

The  circuit  court  heard  apart  of  the  argunuMit  upcm  the  mo- 
tion to  quash  the  indictnuMit  in  tlie  absoiice  of  the  appellant. 
but  she  was  present  when  the  argument  was  concluded  an  1 
when  the  motion  to  quash  was  overruled.  It  is  claiir.  I  '  .i 
thus  hearing  ])art  of  the  argument,  when  the  apt  was 

not  present,  was  erroneous,  and  an  elaborate  ar;;  ut  has 
been  submitted  in  supjiort  of  that  claim.  Section  1 1 -''-.  IJ.  >. 
18SI,  provides  that  *'  no  |)ersoii  |)rosccuted  for  anyoU'eiise  i)Uji- 
isliable  by  death,  or  l)y  ccjuliiu'iiieiit  in  the  statt;  ))rison  or 
county  jail,  shall  be  tried  unless  personally  present  during  tht; 
trial."  ]>ut  this  section  does  not  have  any  relation  to  motions 
in  a  cause  not  connected  with  the  trial,  and  cannot  in  any  event, 
be  held  to  re(piire  the  presence  of  a  ])risoner  during  the  argu- 
ment of  a  motion  merely  preliminary  to  or  i)receding  the 
trial. 

After  a  demurrer  to  the  indictment  had  also  been  overruled, 
the  appellant  was  arraigned  and  entered  a  plea  of  not  guilty 
to  the  charge  preferretl  against  hei". 

Afterwards  the  a[)pellant  asked  leave  to  withdraw  her  ])iea 
of  not  guilty  for  the  purpose  of  enabling  her  to  again  move 


id  jiirors  wlut 
p  which  such 
ippear  alRnu- 
3tinoiit  as  "  ii 
1,"  as  he  pur- 
iit  of  arsenic 
red,  uj)ou  tlio 
amount  used 
to  (juash  Wiis 
rror  is  appar- 
tho  inference 
dly  organized 
nted.  Moore. 
IW:  Hrath  ,'. 

in  each  count 
lie  arsenic  ad- 
h,  and,  in  tiutt 
to  iuiniatei'iul. 

:.  upon  the  uu»- 
tlio  ii])|tellant. 
:()iK hided  aii'l 
claiii     1  t'jt 
aj)  was 

ar;;  iit   lias 

1)11  1  .  .;.  \\.  - 
ly  olfeiise  puu- 
t;il(;  prison  (-r 
>nt  (hiriii;^'  tin; 
ion  to  niutiuiis 
ot  in  any  event 
rin<f  tlie  armi- 
preceding  tlie 

)Gcn  overruled, 
of  not  guihy 

ith'aw  her  plea 
to  again  move 


■«w 


EPPS  V.  THE  STATE. 


521 


to  quasli  the  indictment  upon  the  alleged  ground  that  the  pre- 
vious motion  to  {piash  had  been  made  before  arraignment,  and 
lience  prematurely  made,  but  the  circuit  court  overruled  her 
application,  and  that  is  also  claimed  to  have  been  erroneous. 

J?y  section  17G2,  11.  S.  ISSI,  it  is  enacted  that  "if  the  mo- 
tion to  quash  bo  overruled,  the  defendant  shall  be  arraigned 
by  the  reading  of  the  indictment  or  information  to  him  by  the 
cleric,  unless  ho  waive  the  reading,  and  he  shall  then  be  re- 
quired to  plead  immediately  thereto,"  unless  further  time  bo 
given  to  answer.  This  section  makes  it  plain  that  a  motion  to 
quash,  as  well  as  a  demurrer  to  an  indictment,  in  regular  order, 
jirecedes  the  arraignment.  Xo  cause  was,  there  lore,  shown 
for  the  withdrawal  of  the  ap[)ellant\s  plea  to  the  indictment, 
and,  in  the  absence  of  the  showing  of  any  such  cause,  the 
granting  or  withliohling  leave  to  her  to  withdraw  her  plea 
rested  entirely  within  tiie  discretion  of  the  circuit  court. 

One  William  Fall  was  called  to  serve  as  a  juror  in  the  cause, 
and.  upon  being  sworn  to  answer  as  to  his  qualilications  to 
serve  in  that  capacity,  answered  as  follows:  "I  am  a  voter 
and  householder  of  Huntington  county,  Indiana.  I  have  no 
particular  opinion  of  the  guilt  or  innocence  of  the  defendant. 
I  have  an  opinion  of  it  formed  from  what  I  have  learned  of 
the  case  from  rumor  or  hearsay,  and  from  reading  about  it, 
but  don't  know  whether  what  I  read  was  the  evidence  of  the 
case  or  not."  Counsel  for  the  ai)pellant  thereupon  asked  Fall : 
''When  you  have  an  opinion  on  any  subject  does  it  take  much 
evidence  to  remove  it?"  The  circuit  court  sustained  an  objec- 
tion to  that  question,  and  refusetl  to  permit  it  to  be  answered, 
to  which  an  exception  was  reserved.  Without  any  further 
evid(  ,i.'e  as  to  his  competency,  no  objection  from,  or  further 
exception  by,  the  appellant.  Fall  was  admitted  and  sworn,  and 
served  as  a  juror  in  the  cause. 

One  John  Martz  was  also  called  to  serve  as  a  juror,  and, 
upo.  being  sworn,  said:  "I  am  a  voter  and  householder  of 
Huntington  county,  Indiana,  and  (have)  not  formed  or  ex- 
pressed any  opinion  of  the  guilt  or  innocence  of  the  defend- 
ai»t." 

Counsel  for  the  defendant  then  propounded  to  Martz  the 
following  questions:  "You  would  not  guess  the  defendant 
into  the  penitentiary,  or  to  hanging  her,  would  you  ? "     "  What, 


^wr 


m^^' 


,  <• 


522 


AMERICAN  CRIMINAL  REPORTS. 


if  anything,  have  you  read  of  the  case  ? "  "  You  would  not 
convict  the  defendant  of  the  charge  against  lier  to  please  or 
displease  anybody,  Avould  you?"  Objections  wore  made  and 
severally  sustained  to  these  questions,  whereupon  tiie  ajipcllant 
peremptorily  challenged  31artz,  and  he  was,  consequently,  not 
permitted  to  serve  on  the  jury. 

It  may  be  said  generally  that  the  extent  to  which  a  party 
should  be  allowed  to  go  into  the  examination  of  a  person  called 
as  a  juror  is  not,  in  this  state,  and  cannot  well  be  governed  by 
any  fixed  rules.  Much  rests  in  the  discretion  of  the  court  as 
to  what  questions  may  or  may  not  be  answered,  but  in  practice 
yeiy  great  latitude  is,  and  generally  ought  to  be,  indulged. 

The  questions  asked  of  Fall  had  no  direct  application  to  the 
(piestion  tlion  before  the  court,  wliich  was  as  to  the  extent  and 
the  circumstances  under  wliieh  he  had  formed  an  opinion; 
lienco  it  was  not  error  to  sustain  an  objection  to  the  (juestion. 
The  court  ought,  ])erhaps,  to  have  recjuii'ed  more  evidence  to 
sustain  the  juror's  im[)artiality,  but  as  the  juror  was  admitted 
and  sworn,  withiMit  objection  from  the  ai)i)ellaiit,  no  question 
was  reserved  upon  the  omission  of  the  circuit  court  in  tluit 
respect. 

The  second  question  addressed  to  IMartz  might,  with  propri- 
ety, have  been  permitted,  but  as  he  had  already  iinswen'd  tliiit 
lie  had  neither  formed  nor  expressed  an  opinion  as  to  the  giiilt 
or  innocence  of  the  appellant,  and  as  no  other  (pu^stion  IkuI 
beeii  made  upon  his  competency  as  a  jiu'or,  there  was  seemiiiuly 
nothing  else  remaining  to  which  his  proposed  further  exami- 
nation had  any  material  reference.  It  is,  at  all  events,  not 
apparent  that  the  circuit  court  was  guilty  of  any  abuse  of  its 
discretion  in  sustaining  objections  to  all  of  tin;  (piestions  pro- 
pounded to  IMartz. 

.Tames  C.  Hranvan,  an  attornev  of  the  Iliintinj'ton  circuit 
court,  assisted  in  the  prosecution  of  this  cause,  and  was  also 
examined  as  a  witness  on  behalf  of  the  state.  Jle  testili(Ml  to 
having  been  present  at  the  incpiest  held  upon  the  body  of  .lohn 
Kpps,  and  to  the  fact  that  the  ai)pellant  was  exauiined  as  a 
witness  at  the  incjuest;  ahso  that  the  testimony  given  by  her 
upon  the  occasion  Avas  nnluced  to  writing  by  a  ))erson  desig- 
nated for  that  purpose.  He  furthennore  stated  tliat  when  the 
testimony  of  the  appellant,  as  it  was  written  out,  was  read  over 


EPPS  V.  THE  STATE. 


523 


)u  would  not 
to  please  or 
CO  made  and 
the  apjicllant 
cquently,  not 

lich  a  party 
person  called 

governed  by 

the  court  as 
ut  in  practice 

indulged, 
ication  to  tlie 
iio  extent  and 

an  opinion; 

the  (pu'stion. 
■0  evidence  to 
was  admitted 
,  no  question 
court  in  tliat 

,  with  projtti- 
nsw(!n.'d  tliiit 
IS  to  the  guilt 
(jiiestion  had 
vas  seemingly 
irtlicr  e.xami- 
1  events,  not 
y  abuse  of  its 
juesti<^ns  pio- 

ington  circuit 
and  was  also 
le  testified  to 
body  of  .lolin 
xainined  as  a 
given  by  her 
})ei'son  dcsig- 
that  when  the 
was  read  over 


to  her,  he  told  her  she  was  at  liberty  to  sign  the  paper  thus  read 
to  her,  or  not,  as  she  chose ;  that  there  was  no  power  which 
could  compel  her  to  sign  it  if  she  did  not  wish  to  do  so ;  that 
the  appellant  then  asked  him  if  signing  it  would  •'  clear ''  her  of 
the  charge  that  she  had  probably  had  something  to  do  with  the 
death  of  her  then  deceased  husband,  or  whether  it  might  not 
criminate  her;  that  he  told  her  that  as  to  that  he  did  not  know; 
that  she  thereupon,  without  apparent  further  hesitation,  signed 
the  paper  in  question.  Counsel  for  the  appellant  then  inquired 
of  Mr.  Branyan  whether,  at  the  time  he  told  the  ai)pellant 
that  he  did  not  know  whether  her  signing  the  statement  she 
had  made  before  the  coroner  would  or  would  not  "  clear  "  her,  or 
might  or  might  not  criminate  her,  he  did  not  tell  her  what  was 
untrue,  and  what  he  knew  at  the  time  to  be  untrue.  The  court 
sustained  an  objection  to  tiiat  question,  and  did  not  require  the 
witness  to  answer  it;  it  is  argued  that  thereby  palpable  errc^ 
was  committed. 

At  the  time  the  ai)pellant  made  her  statement  before  the 
coroner,  there  was  no  formal  accusation  against  her,  and  she 
testified  only  as  a  witness  in  common  with  other  witnesses, 
concerning  the  death  of  dohn  Epps.  In  such  a  case,  the  law 
required  that  her  testimony  should  be  reduced  to  writing,  and 
subscribed  by  her,  and  returned  to  the  clerk  of  the  circuit  court 
wnth  other  papers  pertaining  to  the  inquest.  II.  S.  1881,  sec. 
5880;  Woo(h  v.  State,  03  Ind.,  353.  After  she  consented 
to  testify,  it  became  her  duty  to  attest  what  she  had  stated  by 
her  signature,  and  as  what  Mr.  Hranyan  said  to  her,  after  her 
testimony  was  reduced  to  writing,  seemingly  tended  neither  to 
encourage  nor  to  discourage  her  from  subsci-ibing  to  her  state- 
ment, his  motive  in  saying  what  he  did  added  nothing  either 
to  the  valdity  or  invalidity  of  her  signature,  and  hence  the 
proposed  inquiry  as  to  the  truth  of  what  he  told  her  at  the  time 
was  wholly  immaterial.  If  she  had  declined  to  sign  her  state- 
ment, after  it  luid  been  made  and  written  out,  it  might  have 
been  still  used  against  her  in  the  event  that  it  became  relevant 
and  material.     1  (Ireenl.  Ev.,  sec.  228. 

The  appellant's  statement  made  before  the  coroner  was  read 
in  evidence,  over  her  objection,  and  that  is  made  a  cause  of 
complaint,  in  argument  here,  upon  the  ground  that  she  was 
misled  by  Mr.  Branyan,  as  herein  above  stated,  and  that  the 


mr^ 


f ''^'r '?,  'fi       i 


■>-2i: 


AMERICAN  CRIMINAL  REPORTS. 


circuit  court  erroneously  refused  to  permit  him,  Eranj-an.  to 
answer  as  to  the  truth  of  his  representations  made  to  hoi-. 
What  we  have  ah-eady  said  practically  disposes  of  this  cm  use 
of  complaint.  13ut  it  may  be  said  in  addition  that  there  was 
no  pretense  that  any  inducement  or  threats  had  been  used  to 
obtain  a  statement  from  the  ai)pellant  at  the  inquest,  and  that 
all  that  is  objected  toon  the  part  of  Mr.  l^ranyan  occurred  in 
relation  to  the  signature  merely  after  her  statement  had  been 
made  and  committed  to  writing.  Conceding,  therefore,  that 
Mr.  Branj'an  was  guilty  of  all  that  the  last  (juestion  put  to  him 
implied,  there  was  still  no  reason  for  not  admitting  the  appel- 
lant's statement  in  evidence. 

One  I'aker  Pickens  was  a  witness  for  the  state,  and  testified 
to  having  been  frequently  at  and  about  the  house  of  John  Ep|)s 
during  his  last  sickness,  but  denied  having  taken  ver\'  much 
Interest  in  the  c  "e.  Counsel  for  the  apjiellant  then  asked  him : 
"  How  did  you  come  to  be  ])resent  when  the  will  was  probated, 
to  find  out  what  was  in  it  ? "  One  Thomas  Barker  testified  to 
having  been  at  the  funeral  of  .lohn  Epps  as  well  as  the  incjuest; 
also  to  the  fact  that  two  j/iMf-znor/i/m  examinations  were  mad(!  of 
the  body.  Counsel  for  the  appellant  then  incjuired  whothei"  it 
was  not  the  general  talk  at  the  time  in  the  neighborhood,  that 
John  Epps'  body  contained  arsenic  i?  These  (piestions  were 
both  overruled,  and  we  see  no  error  in  these  rulings  of  the  cir- 
cuit court.  Both  questions  were  collateral  merely  to  the  main 
question  under  investigation,  and  were  of  that  class  which 
might  have  been  either  permitted  or  denied  without  material 
injury  to  any  one. 

Dr.  James  F.  Mock  attended  u])on  the  deceased  during  his 
last  sickness,  and,  as  a  witness,  described  the  .symptoms  which 
were  developed  from  time  to  time.  He  also  gave  the  names  of 
the  different  medicines  which  he  administered  to  tiie  deceased 
in  his  treatment  of  the  case.  AVhile  entertaining  some  doubt 
at  first,  he  expressed  the  opinion  that  the  case  ju-oved  to  be  one 
of  arsenical  jmisoning.  Couns(!l  for  the  appellant  then  inquired 
whether  he  had  treated  the  case  as  one  of  arsenical  poisoning, 
but  the  court  refusetl  to  allow  the  question  to  be  answered. 
"We  think  the  question  was  one  which  ought  in  strictness  to 
have  been  permitted,  as  a  means  of  testing  the  credibility  of 
the  witness,  but  the  information  sought  by  it  had  only  an  in- 


''^' . 


Branyan.  to 
lade  to  liof. 
3f  this  c'lisc 
at  there  was 
(con  used  to 
est,  and  tliat 
I  occurred  in 
lit  had  been 
erefore,  that 
in  put  to  him 
g  the  appel- 

and  testified 
»f  John  Ep|)s 
n  veiy  niiicli 
n  aske<l  him: 
'as  probated, 
r  testified  to 

the  incpKjst ; 
were  miuUMit' 
h1  whethei-  it 
iorhood,  tiiat 
estions  wer*; 
gs  of  the  cir- 
'  to  the  main 

chiss  whicli 
lOUt  material 

'd  during  liis 
ptoms  which 
the  names  of 
tiie  deceased 
<;  some  doubt 
^•ed  to  be  one 
then  inquired 
■al  poisoning, 
be  answered, 
strictness  t«» 
credibility  of 
,d  only  an  in- 


EPPS   v.  THE  STATE.  ko\ 

cidental  relation  to  what  was  then  the  subject  of  inquiry,  that 
k  to  say,  whether  the  case  was  really  one  of  poison i no-  bv 
arsenic,  and  hence  we  regard  the  error  committed  by  the  ex- 
clusion of  the  question  as  not  essentially  material. 

One  Dr.  Lomax  was  examined  as  an  expert,  and,  ni)on  a 
hypothetical  case  put  to  him,  expressed  the  opinion  that  the 
deceased  came  to  his  death  by  arsenical  poison.  Counsel  for 
the  appellant  thereupon  inquired  whether  the  conclusion  thus 
reached  by  the  witness  was  one  of  certainty'  or  only  of  high 
])robability,  but  the  court  declined  to  allow  such  an  inquiry  to 
be  made.  We  esteem  that  as  having  been,  under  all  the  cir- 
cumstances, both  a  pertinent  and  a  proper  question,  but  the 
subject-matter  involved  was  so  thoroughly  and  elaborately  dis- 
cussed and  reviewed  by  other  witnesses  who  testified  as  ex- 
ports in  the  cause,  that  we  feel  justified  in  assuming  that  no 
sei'ious  injury  was  inflicted  ujion  the  appellant  by  the  exclusion 
of  that  question. 

It  was  made  to  appear  by  the  evidence  that  Dr.  Mock  ad- 
ministered bismuth  to  the  deceased  during  his  illness,  and  the 
question  was  made  whether  bismuth  does  not  frequenth'  con- 
tain traces  of  arsenic,  and  whether  the  bismuth  so  administered 
might  not  have  been  impregnated  with  arsenic.  Dr.  Mock  was, 
as  bearing  upon  that  question,  allowed  to  testify  that  he  after- 
wards administered  the  same  kind  of  bismuth  to  another 
patient  without  any  injurious  efTect,  and  tiiat  he  afterwards 
purchased  some  more  bismuth  from  the  same  package  and  sent 
it  to  Dr.  Dreyer,  a  clu>mist  at  Fort  A\^ayne,  to  be  analyzed. 
Dr.  Dreyer  was  then  permitted  to  state  that  iie  analyzed  the 
bismuth  sent  to  him  by  Dr.  AFock  and  found  no  traces  of  arsenic 
in  it.  All  that  occurred  about  the  bismuth,  after  the  deatli  of 
John  Epps,  was  over  the  objection  of  the  ajipellant,  but  the 
evidence  in  that  respect  tended  to  show  that  the  bismuth  ad- 
ministered to  Epps  was  free  from  arsenic,  and  was  hence  ma- 
terial and  proper. 

The  state  was  permitted  to  prove  that  John  Epps  was  a 
human  being.  That  was  unnecessary,  but  evidently  did  the 
aj)pellant  no  harm.     Merrick  v.  State,  (i3  Ind.,  327. 

The  appellant  offered  to  read  in  evidence  two  pages  from  a 
book  known  as  "  Taylor  on  Poison,"  which  refers  to  the  im- 
pure condition  in  which  bismuth  is  often  found.     It  was 


526 


AMERICAN  CRIMINAL  REPORTS. 


I 


admitted  that  the  book  was  a  standard  work  on  the  subject  to 
which  it  relates,  but  it  was  nevertheless  held  to  bo  inadmissible 
in  evidence.  Counsel  for  the  appellant  admit  that  the  book 
was  inadmissible  according  to  previous  decisions  of  this  court, 
but  maintain  that  these  previous  decisions  are  against  reason 
and  an  enlightened  view  of  public  justice.  It  is  true  that  the 
line  of  cases  on  the  subject  of  the  non-admissibility  of  medical 
works  and  other  books  of  science,  of  which  our  cases  form  a 
part,  has  been  criticised,  and,  at  times,  commented  upon  un- 
favorably, but  the  rule  established  by  these  cases  has  never,  to 
our  knowledge,  been  seriously  encroached  upon,  and  neverthe- 
less continues  to  be  genei'ally  maintained.  No  sufficient  reason 
has  been  suggested,  as  we  believe,  for  a  departure  from  that 
rule  in  the  present  case.  See  1  Greenl.  Ev,,  sec.  497,  and  note; 
Carter  v.  State,  2  Ind.,  617;  Lomjnecher  v.  State,  22  Ind.,  217. 
As  having  some  relation  to  the  same  subject,  see  the  cases  of 
Cory  V.  Sllcox,  6  Ind.,  39;  Balchoin  v.  Bricker^  86  Ind.,  221; 
Jones  V.  Angell,  95  Ind.,  .376. 

One  of  the  attorneys  for  the  state,  in  his  closing  argument, 
while  commenting  upon  the  propriety  of  convicting  upon  cir- 
cumstantial evidence  alone,  exclaimed :  "  Why  a  man  was 
hung  at  Fort  AV^ayno,  in  an  adjoining  county,  on  circumstantial 
evidence  not  one-hundredth  part  as  strong  as  the  evidence  in  this 
case  against  Mrs.  Epps."  These  remarks  were  objected  to  by 
one  of  the  counsel  for  the  appellant,  who  interruptingly  said 
that  while  he  was  not  familiar  with  the  facts  of  the  case  re- 
ferred to,  "he  knew  that  in  that  case  the  fruits  of  the  crime 
had  been  traced  to  a  pawn-shop."  The  court  thereupon  ad- 
monished the  attorncN'  for  the  state  that  he  must  conline  him- 
self to  the  evidence  in  his  statements  to  the  jury,  to  which  the 
attorney  with  much  earnestness  replied :  '"  1  know  what  I  am 
saying,  and  I  do  not  want  to  be  interrupted  in  my  argument ; 
it  throws  me  off  my  line  of  argument." 

On  the  day  before  John  Epps  was  taken  sick,  one  Clinton 
Orndoff,  the  son-in-law  of  the  appellant,  accompanied  her,  as 
also  did  his  wife,  to  the  city  of  Huntington,  three  miles  from 
their  homes. 

Orndoff  testified  that  while  in  the  city  the  appellant  gave 
him  five  cents  to  buy  some  arsenic,  avowedly  to  kill  rats  and 
mice;  that  he  bought  five  cents'  worth  of  arsenic,  as  requested, 


EPPS  V.  THE  STATE. 


527 


he  subject  to 
inadmissible 
;hat  the  book 
of  this  court, 
^ainst  reason 
rue  that  the 
y  of  medical 
cases  form  a 
ted  upon  un- 
has  never,  to 
md  nevertho- 
Hcient  reason 
are  from  that 
t97,  and  note ; 
22  Ind.,  247. 
}  the  cases  of 
BG  Ind.,  221; 

Iff  arffument. 

ting  upon  cir- 

a   man   was 

ircumstantial 

idence  intliis 

jjected  to  l)v 

u[)tingly  said 

f  the  case  r(3- 

of  the  crime 

hereupon  ad- 

contine  liiiii- 

to  which  tlie 

w  what  I  am 

ly  argument ; 

,  one  Clinton 
anied  her,  as 
e  miles  from 

)pellant  gave 
kill  rats  and 
as  requested, 


and  gave  it  to  her  in  "Weaver's  store,  telling  her  at  the  same 
time :  "  Here  is  the  arsenic ;  it  is  poison ;  be  careful ;"  that  the 
appellant  took  the  package  and  said  "  All  right ;  I  have  handled 
that  before." 

The  attorney  for  the  state,  above  referred  to,  in  commcntino- 
upon  tliis  evidence,  said,  in  substance,  "This  woman'"  (point- 
ing to  the  appellant)  "took  poison  from  Clinton  Orndoff  in 
Weaver's  store  and  said,  '  I  know  wliat  it  is;  I  know  it's  poison; 
I've  handled  it  before ;  I've  buried  two  husbands  and  children." '" 

Counsel  for  tlie  appellant  again  ol)jocted,  and  tlie  court  ad- 
monished the  attorney  for  the  state  that  he  must  keep  within 
the  evidence,  whereupon  that  attorney  resi)ondcd :  "  I  don't 
mean  that  she"  (the  ai)pellant),  "  said  it  all  in  Weaver's  store; 
I  mean  to  say  that  she  said  in  "Weaver's  store  that  she  knew  it 
was  poison,  and  had  handled  it  before,  and  that  it  was  a  fact 
that  she  had  buried  two  husbands  and  children,  but  I  disclaim 
any  intention  to  say  that  shetestilicd  to"  (these  facts)  "all  in 
the  same  connection  in  the  store." 

There  was  evidence  tiMiding  tc»  prove  that  the  appellant  was 
a  widow  when  she  married  .lohn  Epps.  and  that  she  was  at  the 
time  the  mother  of  two  sets  of  children,  fi'oui  which  the  infer- 
ence that  she  had  bt'en  twice  previously  married  was  not  unrea- 
sonable, and  might,  therefore,  be  assumed. 

One  Edward  Mise  was  a  witness  at  the  trial  and  testified 
primarily  on  behalf  of  the  state,  lie  was  a  half-brother  of 
John  Epps,  and,  being  unmarried,  liad  lived  with  him  for  many 
years  and  up  to  the  time  of  his  death.  The  attorney  for  the 
state,  continuing  Ids  argunu}nt,  said:  "Oh I  gentlemen  of  the 
jury,  if  I  could  toll  you  what  that  good  old  man,  Edwai'd  ]\Iise "' 
(pointing  to  him),  "told  me  he  knows  about  other  dark  things 
surrounding  this  case,  it  would  clear  away  much  of  the  mys- 
tery about  it,  about  which  counsel  for  defense  talk  so  much."' 
Counsel  for  the  appellant  again  objected,  and  the  court  directed 
the  attorney  for  the  state  to  suspend  his  argument,  but  he  de- 
clined to  heed  the  admonition  of  the  court,  and  proceeded  with 
his  address  to  the  jury. 

It  was  a  conceded  matter  at  the  trial  that  i\[r.  Moore,  one  of 
the  appellant's  counsel,  had  formerly  resided  in  Huntington 
county,  but  was  then  a  resident  of  the  city  of  Chicago,  and, 
in  the  examination  of  some  of  the  witnesses,  a  question  was 


^'►^4M;  ,    ' 


:s. 


^^ 


528 


AMERICAN  CRIMINAL  REPORTS. 


made  whether  the  appellant  had  not  employed  Mr.  Moore  in 
her  defense  before  she  was  either  arrested  or  formally  charged 
with  the  murder  of  her  husband. 

In  commenting  upon  the  appellant's  alleged  consciousness  of 
guilt,  the  attorney  for  the  state,  further  continuing,  charged 
that  "she  "  (pointing  to  the  accused)  ''sent  to  Chicago  for  Mr. 
Moore,  a  criminal  lawyer,  before  she  was  charged  with  the 
crime,  and  employed  him  to  defend  her."  intimating  that  her 
conduct  in  that  regard  afforded  another  illustration  of  the  truth 
of  the  scriptural  adage  that  "  The  wicked  flee  when  no  man 
pui-sueth."  To  this  counsel  for  the  appellant  also  objected,  but 
the  attorney  for  the  state  again  refused  to  suspend,  and  con- 
tinued his  argument  to  the  jury. 

The  attorney  for  the  state  evidoiitly  went  beyond  the  limits 
of  legitimate  debate  in  some  of  his  statements  to  tlie  jury,  and 
])alpably  so  in  his  allusion  to  what  Kdwai'd  Mise  had  told  him. 
He  also  made  himself  amenable  to  the  circuit  court  for  a  con- 
tempt of  its  authority.  Hut,  wlion  taken  in  connection  with 
the  interruptive  denials  and  interjections  of  counsel  for  the 
appellant,  and  the  prompt  disa])proval  in  each  instance  by  the 
court,  we  would  not  feel  justified  in  holding  that  the  miscon- 
duct of  the  atiorney  for  the  state  was  so  gross  as  to  require 
the  reversal  of  the  judgment  against  the  appellant.  St.  Loiii-'>. 
etc.,  R.  W.  Co.  V.  3£>j)'th\  51  Ind.,  ortfl;  Kinnanutn  v.  K'uma- 
Dion,  71  Ind.,  417;  Combs  v.  Statf,  75  Ind..  215;  Rudolph  v. 
Lauihverlen,  92  Ind.,  34.  Such  misconduct  in  argument,  as 
that  complained  of  as  above,  stands  upon  a  different  footing 
from  comments  upon  the  failure  of  a  defendant  to  testify  in 
his  own  behalf,  since  such  comments  arc  in  violation  of  the 
express  provision  of  a  statute.     R.  S.  1881,  sec.  1708. 

In  one  of  its  instructions,  the  circuit  court  told  the  jury 
that  ''it  is  essential  to  the  conviction  of  the  defendant  that  the 
following  facts  must  be  proven  beyond  a  reasonal)le  doubt,  to 
wit:  1st.  The  death  of  John  Epps,  named  in  ihe  indictment. 
2d.  That  his  death  was  caused  by,  or  was  mediately  or  immc 
diately  accelerated  by,  jwison  by  ai-senic.  3d.  That  the  poison 
thus  causing  or  accelerating  the  death  of  John  Epps  wns 
felouiouslv  administered  bv  the  defendant  to  him,  or  that  the 
defendant  feloniously  participated  in  such  administration 
thereof,  or  feloniously  caused  the  same  to  be  administered  to 


yfr.  Moore  in 
lally  charged 

isciousness  of 
ling,  charged 
icago  for  Mr. 
•o;ed  with  the 
iting  that  her 
n  of  the  truth 
ivhcn  no  man 
►  objected,  but 
end,  and  con- 

Dnd  the  limits 
I  the  jury,  and 
liad  tohl  him. 
)urt  for  a  con- 
innection  with 
»unsel  for  the 
1  stance  by  the 
at  the  misc'on- 
5  as  to  require 
lit.     SL  LoHis, 
urn  V.  Khina- 
liwMj^h  V. 
argument,  as 
ferent  footing 
it  to  testify  in 
ohation  of  tlie 
1708. 

toUl  the  jury 
ndant  that  tlie 
I  able  doubt,  to 
he  indictment, 
ately  or  immc 
hat  the  poison 
)hn  Epps  was 
im,  or  that  the 
administration 
dministered  to 


>: 


EPPS  V.  THE  STATE. 


529 


him.  4th.  Tliat  the  offense  was  committed  in  Huntington 
county,  in  the  state  of  Indiana," 

It  is  objected  that  this  instruction  did  not,  also,  tell  the  jury 
tliat  death  must  have  resulted  within  a  year  and  a  day  after 
the  poison  was  administered.  In  the  first  place,  we  see  noth- 
ing in  the  instruction,  so  far  as  it  purported  to  go,  which  could 
have  injured  the  appellant.  In  the  next  place,  there  was  no 
evidence  which  required  the  additional  definition  insisted  upon. 
The  last  sickness  of  Joim  E|)ps,  immediately  following  his 
symptoms  of  arsenical  poisoning,  was  of  less  than  a  week's 
duration. 

The  court  further  instructed  the  jury  that  "the  opinions  of 
the  ox])ei'ts  are  to  be  considered  by  you  in  connection  with  all 
tlie  other  evidence  in  the  case.  You  are  not  to  act  upon  them 
to  the  i/itire  exclusion  of  otiier  testimony.  You  are  to  apply 
the  same  general  rules  to  the  testimony  of  experts  that  are 
applicable  to  the  testimony  of  other  witnesses  in  determining 
its  weight,  taking  into  consideration  the  opinions  of  the  ex- 
perts, and  giving  them  just  weight;  you  are  to  determine  for 
yourselves,  from  the  whole  evidence,  whetlier  the  defendant  is 
guilty  as  she  stands  charged,  beyond  a  reasonable  doubt." 

It  is  complainetl  that  this  instruction  tokl  the  jury,  in  effect, 
that  they  might  consider  the  testiuu>ny  of  the  experts  to  the 
partial  exclusion  of  other  evidence,  and  that  it  was  error  to  so 
insti'uct  the  jury.  It  does  not  necessarily  follow  that  the  in- 
struction was  erroneous,  conceding  the  construction  of  it  con- 
tended for.  .But,  however  that  uuiy  be,  we  see  no  objection  to 
the  instruction  as  a  whole,  and  can  only  regard  the  criticism 
made  upon  it  as  an  impracticable  one.  Ooodwui.  v.  State,  96 
Ind.,  550. 

The  next  instruction  told  the  jury,  in  brief,  that  the  facts 
stated  in  a  hypothetical  case  need  not  necessarily  be  always 
fully  proven,  to  give  value  to  the  testimony  of  an  expert,  and 
that  instruction  is  substantially  supported  by  the  case  of  Eggtrsi 
V.  I'Jjfjcrs,  57  Ind.,  401.  , 

A  subsequent  instruction  told  the  jury,  in  connection  with 
such  illustrations  and  precautions  as  are  usual  in  such  cases,  in 
substance,  that  the  appellant's  guilt  might  bo  established  by 
circumstantial  evidence  alone.  That  doctrine  is  too  well  sus- 
tained by  the  authorities  to  require  any  extended  comment 
Vol.  V  — 34 


'f  ■ 


,,ji: 


530 


AMERICAN  CRIMINAL  REPORTS. 


-l:4^■ 


upon  it.  See  1  Greenl.  Ev.,  sees.  13  and  13a/  Moore,  Crim. 
Law,  sees.  344,  397. 

Two  other  instructions  taken  together  announced  the  doc- 
trine that  testimony  could  only  be  rejected  because  it  was  not 
true,  and  that  when  the  evidence  is  irreconcilably  conflicting, 
that  which  is  false  must  be  I'ejected.  This  doctrine  is  often- 
times very  difficult  of  application,  but  it  is  doubtless  the  law 
when  abstractly  considered,  and  we  are  unable  to  see  that  there 
was  anything  in  either  one  of  these  last-named  instructions 
presumably  injurious  to  the  appellant. 

The  appellant  asked  the  court  to  instruct  the  jury  that  "  if 
the  proof  shows  positively  that  one  or  two  or  more  persons 
committed  the  homicide  set  out  in  the  indictment,  but  leaves  it 
uncertain  which  of  them  in  fact  committed  the  act  which 
caused  the  death,  all  such  persons  must  be  acquitted,  unless  it 
was  committed  by  one  of  them  under  circumstances  which  in 
law  makes  the  other  equally  guilty."  That  instruction  was  re- 
fused, and  that  refusal  is  relied  upon  as  clearly  and  positively 
erroneous.  As  applicable  to  an  appropriate  state  of  facts,  tlie 
instruction  states  the  law  correctly,  but  there  was  nothing'  in 
the  evidence  in  this  case  to  which  it  could  have  had  any  pi-ac- 
tical  application.  There  was  nothing  in  the  evidence  wliich 
tended  even  remotely  to  implicate  any  one  else  besides  the  ap- 
pellant. JIuhf/aM  V.  State,  72  Ala,.,  104.  P]ither  slie  was  guilty, 
or  the  whole  case  remained  a  profound  and  impenetrable  mys- 
tery. 

The  deceased  had  symptoms  of  arsenical  poisoning  two  days 
before  a  physician  was  called,  and  before  any  medicine, 
whether  pure  or  impure,  was  administered  to  him.  The  med- 
icines thereafter  prescribed  for  the  deceased  were  fully  ex- 
plained and  accounted  for.  The  instruction  was,  therefore, 
correctly  refused. 

Other  instructions  were  asked  by  the  appellant  and  refused 
by  the  court,  but  the  substance  of  them  had,  as  we  believe,  al- 
ready been  given  by  the  court  upon  its  own  motion,  in  some 
other  form,  and  there  was  hence  no  error  in  refusing  merely 
cumulative  instructions.  At  all  events,  the  jury  a])pear  to  us 
to  have  been  fuU}'^  and  carefully  instructed  ujion  all  tlie  mate- 
rial matters  to  which  their  attention  was  especially  required. 
thus  rendering  further  instructions  unnecessary. 


EPPS  V.  THE  STATE. 


631 


iiloore,  Crira. 

ced  the  doc- 
;e  it  was  not 
Y  conflicting, 
rine  is  often- 
)tless  the  law 
see  that  there 
[  instructions 

jury  that  "  if 
more  persons 
;,  but  leaves  it 
le  act  which 
tted,  unless  it 
nces  which  in 
uction  was  re- 
md  positively 
3  of  facts,  the 
'as  nothing  in 
liad  any  prao- 
vidence  which 
resides  the  ap- 
ihe  was  guiUy, 
netrable  mys- 

ining  two  days 
my  medicine, 
m.  The  med- 
were  fully  ox- 
vas,  therefore, 

it  and  refused 
we  believe,  al- 
lot ion,  in  some 
fusing  merely 
y  ji])pear  to  us 
n  all  the  mate- 
cially  re(piire(l 


Misconduct  on  the  part  of  the  jury  was  also  charged  as  a 
cause  for  a  new  trial.  In  sujjport  of  this  charge,  atfidavits 
were  filed  stating  that  two  or  three  of  the  jurors  were,  during 
the  progress  of  tiie  trial,  permitted  by  their  bailiff  to  walk 
from  the  rear  of  the  court-liouso  across  the  court-house  lot, 
where  other  people  were  standing  and  walking  to  and  fro,  a, 
distance  of  one  hundred  and  lifty  or  two  hundred  feet,  to  a  pub- 
lic closet,  and  return  without  baing  accompanied  by  him;  also 
assorting  that  one  evening,  after  court  had  adjourned,  the  jury 
wore  found  walking  around  in  the  court-house  in  a  more  or  less 
dispersed  condition  amongst  a  crowd  of  people  who  had  been 
attending  court,  under  the  |)retext  of  taking  some  exercise. 
Counter-atfldavits  were  also  liled,  either  expressly  or  inferen- 
tially  denying  the  alleged  misconduct  charged.  Upon  the 
issue  tiius  presented  tlie  circuit  court  decided  that  the  charges 
of  misconduct  on  the  part  of  some  of  the  jurors,  as  well  as  the 
entire  jury,  were  not  sustained. 

It  has  been  held  by  this  court  that  wliere  a  motion  for  a  new 
trial  is  based  upon  alleged  misconduct  of  the  jury,  or  of  certain 
jurors,  and  the  court  has  heard  evidence,  whether  presented 
orally  or  by  affidavit,  concerning  such  alleged  misconduct,  the 
conclusion  reached  will  not  be  disturbed  by  this  court  upon 
what  may  seem  to  be  the  weight  of  the  evidence,  and  that  may 
now  be  regarded  as  a  well-established  rule  of  practice  in  this 
state.     Zouf/  r.  State,  9,")  Ind.,  4SI. 

It  is  claimed,  llnall^^  that  the  verdict  was  not  sustained  by 
sutiici^nt  evidence,  and  that  for  that  reason,  if  for  no  other, 
the  judgment  ought  to  be  reversed. 

It  is  true,  that  everything  which  served  to  connect  the  ap- 
pellant with  the  death  of  Joiin  Epps  rested  upon  circumstan- 
tial evidence,  and  that  the  circumstances  were  not  absolutely 
conclusive  against  the  appellant,  yet  upon  the  whole  evidence 
we  see  no  palpable  reason  for  doubting  her  guilt.  The  evi- 
dence tended  to  establish  beyond  all  question  that  the  de- 
ceased died  from  arsenical  [)oisoning,  produced  by  tlie  admin- 
istration of  small  or  divided  doses  of  arsenic;  tiuitthe  deceased 
was  taken  sick,  with  symptoms  indicating  the  presence  of 
arsenic  in  his  stomach,  the  day  after  the  appellant  purchased 
arsenic,  as  herein  above  stated ;  that  the  appellant  cooked  the 
deceased's  breakfast  and  served  it  to  him  the  morning  he  was 


532 


AMERICAN  CRIMINAL  REPORTS. 


taken  sick ;  that  she  administered  food  and  medicine  tu  him 
during'  his  sicivness,  having  opportunities  in  that  respect  which 
no  one  else  enjoyed;  that  she  at  first  denied  having  purchased 
any  aisenic  tlie  day  before  her  husband  was  taken  sick,  iind 
■when  confronted  with  the  fact  that  she  had  (h)ne  so,  she  was 
unable  to  give  any  account  of  wluit  became  of  the  arsenic. 
Tiiero  were  other  circumstances  unfavorable  to  the  appellant 
whic^h  it  is  impracticable  to  set  out  at  lenglli.  The  judgment 
cannot,  therefore,  be  reversed  upon  the  evidence. 

As  affecting  criminal  causes,  section  1S!»1,  R.  S.  18S1,  enacts 
that,  "In  the  consideration  of  the  questions  which  are  jne- 
sented  upon  an  appeal,  the  su[)reme  court  shall  not  regard 
technical  errors  or  delects  or  excc[)ti()ns  to  any  decision  or 
action  of  the  court  below,  which  did  not,  in  the  oj)inion  of  the 
su[>reme  court,  prejudice  the  substantial  rights  of  the  defend- 
ant." AVe  construe  technical  eri'oi's  to  includes  in  this  con- 
nection, merely  abstract  and  practically  harmless  errois. 
While,  therefore,  wo  agree  that  some  errors  and  irregularities 
intervened  during  the  i)rogress  of  the  cause  as  herein  above 
indicated,  we  regard  these  errors  and  irregularities  as  not 
having  probably  had  any  perceptible  effect  upon  the  result  of 
the  trial,  and  as  the  verdict  was  seemingly  and  in  every  loa- 
sonable  view  probably  right  upon  the  evidence,  no  sullicient 
reason  has  been  shown  for  a  reversal  of  the  judgment.  Smith 
V.  State,  28  Ind.,  321;  lioUlns  v.  State,  02  Ind.,  4G;  Bl7ins  v. 
State,  CO  Ind.,  428. 

The  judgment  is  affirmed,  with  costs. 


State  v.  Mackev. 

(12  Oregon,  154.) 

Mukdkk:  Evidence  —  Contradictory  statements  —  Phijuical  condition  of 
accused  —  Plea  of  not  guilty  puts  in  issue  every  material  allegation  in 
indictment. 


1.  Nkw  trial  — Discretion.— a  motion  for  a  new  trial  is  addrea^od  to 
tlie  sound  discretion  of  the  court  before  which  it  is  made,  and  the 
ovenuling  of  such  a  motion  will  not  be  reviewed  unless  there  appears 
to  have  been  a  plain  abuse  of  such  discretion. 


''^W  ■ 


STATE  V.  MACKEY. 


088 


icine  tu  him 
espect  which 
ig  purchased 
cen  sick,  iind 
e  so,  she  was 
the  arsenic, 
he  apiu'llant 
lie  jiulguicnt 

.  18S1,  enacts 

hich  are  pre- 

l  not  re^^ard 

y  decision  or 

H>inion  of  tlio 

f  the  det'end- 

,  in  this  con- 

udess    errors. 

irregularities 

herein  above 

arities  as  not 

I  tlie  result  of 

in  every  roa- 

no  suilicient 

nient.     Smith 

40;  B'mna  v. 


cat  condition  of 
rial  allegation  in 

I  is  addies^oil  to 
is  made,  and  the 
CBS  there  appears 


3.  HOSTIIJTY    OF    WITNKSS  — (;ONTUAr>irTORY   STATFSrKMTfi.— T!loro    19   no 

difference,  so  far  as  the  rule  is  concerned,  between  admitting  in 
evidence  a  declaration  of  hostility  of  a  witness  for  the  piupose  of  af- 
fecting the  value  of  his  testimony,  and  admitting  contradictory  state- 
ments for  the  same  purpose,  as  in  either  case  an  opportunity  shoidd  be 
niven  the  witness  to  explain  what  he  said. 
8.  Physical  roNoiTioN  op  accused  at  time  of  commission  op  tiif. 
CRIME.— The  declarations  of  a  party  should  he  admitted  to  prove  his 
physical  condition  at  a  certain  time,  in  onler  to  let  the  Jury  consider 
whether  he  wjis,  under  the  circumstances,  able  to  undertake  the  exer- 
tion necessary  to  commit  the  crime. 

4.  The  kiluno  —  Question  for  .jury.— In  atrial  for  murder,  the  I«  11  ling 

is  a  fact  to  be  found  by  the  Jury  before  they  (;onsider  the  (|uestion  of 
malice;  and  after  a  plea  of  "  not  guilty,''  it  is  error  for  the  court  to 
charge  that  the  killing  Una  been  proved,  leaving  only  the  other  ques- 
tion for  the  Jury. 

Appeal  from  Josephine  County. 

P.  P.  Prim  and  ./.  F.  Watson,  for  appellants, 
Thos.  B.  Kent,  district  attorney,  and  IF.  //,  Holmes,  for  re- 
spondent. 

Loud,  J.  The  defendants,  father  and  son,  were  indicted 
jointly  and  tried  jointh'^  for  the  crime  of  murder,  found  guilty 
and  sentenced  to  be  hanged.  The  bill  of  exce{)tions  purports 
to  contain,  in  substance,  the  whole  testimony,  and  the  first 
point  suggested  is  the  insulHciency  of  the  evidence  to  justify 
the  verdict.  This  alleged  error  applies  to  the  denial  of  the 
defendants'  motion  for  a  new  trial.  There  are  cases  in  winch 
it  has  been  held  that  a  motion  for  a  new  trial  is  addressed  to 
the  sound  discretion  of  the  court  below,  and  that  the  overrul- 
ing of  such  a  motion  will  not  be  reviewed  unless  there  is  a 
plain  abuse  of  such  discretion.  This  is  conceded,  but  it  is 
earnestly  and  strenuously  insisted  tliat  the  evidence  is  so  man- 
ifestly insufficient,  and  particularly  as  against  the  son,  to  sus- 
tain the  verdict,  that  it  falls  within  the  rule  laid  down  in  those 
cases  which  would  authorize  the  court  to  review  and  set  aside 
the  verdict.  But  a  different  doctrine  seems  to  have  been  hold 
by  this  court  in  Hallock  v.  City  of  Portland,  8  Or.,  30.  Prim, 
J.,  in  deliveri'^g  the  opinion  of  the  court,  said: 

*' As  the  mot  on  for  a  new  ti'ial  was  based  wholly  upon  the 
insufficiency  of  the  evidence  to  justify  the  linditi ;  of  fact,  the 
granting  of  the  motion  was  a  matter  resting  wholly  in  the  dis- 


"f 


634 


AMERICAN  CRIMINAL  REPORTS. 


orction  of  tlio  court  below,  and  cannot  be  reviewed  on  npiM'iil,"' 
State  V.  WUsou;  0  Or.,  42S;  State  v.  Fifzhuyh,  2  Or.,  227; 
ITIl.  N.  T.,  7;  Pomeroi/n  L-Hnce  v.  Bank  of  fmliana.  i  Wall., 
697;  Penyisylvania  M.  Co.  v.  Brathj,  14  Mich.,  260;  lioijkinv. 
Perry y  4  Jones,  Law  (N.  C),  325. 

It  is  true  the  evidence  against  the  defendants  is  wholly  cir- 
cumstantial; and  there  can  be  no  doubt  but  what  that  portion 
of  it  which  relates  to  the  son  is  extremely  slight  ujion  which 
to  found  a  verdict.  But  the  authoi'ities  cited  indicate  that  such 
matter  is  not  reviewable  on  appeal. 

It  is  next  assigned  as  error  that  the  court  erred  in  not  allow- 
ing John  Mack  to  answer  the  impeaching  question  asivcd  him 
by  the  defense,  if  he  ha<l  not  said  to  one  Mmer  —  the  time, 
place  and  parties  present  being  stated  —  that  there  was  not 

evidence  enough  to  hold  the  (I d Mackeys,  but  that  he 

intended  to  send  them  to  jail  and  hunt  the  evidence  afterwards. 
The  object  of  this  evidence  was  to  impair  the  force  of  the 
witness's  testimony,  as  showing  that  he  entertained  hostile  or 
embittered  feelings  .against  the  defendants.  He  was  the  mag- 
istrate who  had  bound  the  parties  over,  and  a  witness  for  tlio 
prosecution.  The  ends  of  justice  are  best  attained  by  allowing 
a  free  and  ample  scope  for  scrutinizing  evidence  and  estiinatitig 
its  real  value.  The  question  put  contained  all  proper  informa- 
tion as  to  time,  place  and  persons  present,  and  the  precise  mat- 
ter which  was  to  be  used  against  him;  so,  in  the  event  he  should 
admit  having  made  such  declaration,  an  opportunity  would  be 
afforded  him  to  rebut  or  explain  it.  There  is  no  distinction, 
so  far  as  the  rule  is  concerned,  between  admitting  declaia- 
tions  of  hostility  of  a  witness  for  the  purpose  of  affecting  tlio 
value  of  his  testimony,  and  admitting  contradictory  state- 
ments for  the  same  purpose,  as  in  either  case  an  opportunity 
should  be  given  the  witness  to  explain  what  he  said.  The 
witness  should  have  been  allowed  to  answer  the  question ;  to 
say  wiicther  he  did  or  did  not  make  the  alleged  statement;  or, 
if  ho  did,  to  make  his  explanation  of  it.  By  so  doing  tlie  jury 
would  have  been  put  in  a  position  of  estimating  the  real  value 
of  his  testimony;  of  determining  whether  he  was  an  impartial 
witness,  testifying  without  prejudice  or  passion,  or  in  fact  a 
hostile  witness,  whose  prejudices  and  passion  had  colored  bis 
testimony,  and  reiiuiring  it  to  be  closely  scrutinized  and  weighed. 


■  1'  ^. 


STATE  V.  MACKEY. 


585 


don  apixMl." 
,  2  Or.,  ii2T; 
ana.  I  AVall., 
10 ;  lioijhin  V. 

is  wlioUy  cir- 
i  that  portion 
t  upon  which 
:;ate  tliat  such 

in  not  allow- 
on  askod  him 
r  —  the  time, 
ihere  was  not 
^s,  but  that  he 
^e  afterwards. 

force  of  the 
nod  hostile  or 
was  the  niag- 
itness  for  tlio 
d  by  allowing 
nd  estimating 
oper  infornia- 
e  precise  mat- 
I'ent  he  siioiild 
nity  would  be 
LO  distinction, 
tting  doclara- 

alfecting  the 
dictory  state- 

opportiniity 
he  sai»l.  Tlie 
!  question;  to 
statement;  or, 
loing  the  jury 
the  real  value 
s  an  impartial 
I,  or  in  fact  a 
nd  colored  his 
I  and  weighed. 


It  is  next  objected  that  the  court  erred  in  sustaining  the  ob- 
jection of  the  state  to  the  question  asked  by  the  defense  of  A. 
J.  Henderson,  whether  or  not  Martin  Mackey  did  not  decline, 
on  account  of  his  physical  condition  on  two  days,  to  go  out 
and  show  the  claim.  It  ai>pears  at  the  June  election,  previous 
to  the  time  indicated  in  the  (juestion,  that  Mackey  had  been 
severely  beaten  and  bruised  by  the  deceased,  and  that  he  was 
some  time  in  recovering  from  the  effects  of  it,  and  regaining 
his  accustomed  strength  and  health ;  that  before  he  had  en- 
tirely recovered,  some  parties  desired  to  purchase  his  mining 
claim,  and  went  to  his  cabin  to  see  him,  and  it  was  proposed 
to  show  by  the  question  that  he  was  then  in  such  a  debilitated 
physical  condition  as  caused  him  to  decline  to  go  out  and  show 
the  mine,  which  was  some  distance  off.  The  ultimate  object 
of  the  evidence  was  to  show  that  his  physical  weakness  was  such 
at  the  time  of  the  murder  that,  considering  the  distance  from 
his  cabin,  he  would  have  had  to  travel  over  a  rouifh  and  brushv 
trail  across  the  mountains  to  the  cabin  where  the  deceased 
was  killed;  hat  it  could  not  reasonably  be  attributed  to  him; 
in  other  wonis,  it^  believed,  it  would  have  been  a  circumstance 
which  would  have  gone  far  to  prove  that  he  did  not  com- 
mit the  crime.  It  seems  that  he  wanted  to  sell  his  mine,  and 
if  he  was  unable  or  declined  to  accompany  the  parties  for 
the  purpose  of  exa'uining  it,  because  of  his  physical  debility, 
his  complaints  of  a  present  existing  pain  or  malady  would  be 
admissible.  The  declarations  of  a  party  are  received  to  prove 
his  condition,  ills,  pains  and  symptoms,  whether  arising  from 
sickness,  or  an  injury  by  accident  or  violence. 

It  is  also  objected  that  the  court  erred  in  not  allowing  the 
cross-questions  asked  by  the  defense  of  Charles  Hughes,  county 
clerk,  as  follows : 

"Did  Mr,  Thompson  go  to  you  at  the  time  you  stated  and 
ask  to  see  the  boots  in  your  possession  [referring  to  Mackey's 
boots],  said  to  belong  to  Mackey,  and  did  he  not,  after  examin- 
ing them,  exclaim,  'That  is  all  right?'  " 

The  boots  which  Mackey  wore  were  in  the  possession  of  the 
officer,  and  were  used  in  the  prosecution  as  one  of  the  strong 
circumstances  in  the  case  as  connecting  the  elder  defendant 
with  the  crime,  and  we  think  the  witness  should  have  been 
allowed  to  answer  the  question. 


536 


AMERICAN  CRIMINAL  REPORTS. 


-'it 
■i 

i 

f 


The  next  objection  is  to  an  instruction  of  the  court  as  fol- 
lows : 

"  It  is  charged  in  the  indictment,  as  I  have  said,  that  JVIichael 
Purcell  was  killed  on  the  2Cth  day  of  June,  1884,  but  it  is  not 
necessary  for  the  state  to  prove  that  or  any  other  particular 
date  in  that  connection;  and  it  is  sufficient  if  it  be  showr.  that 
the  killing  was  done  at  any  time  prior  to  the  finding  of  this 
indictment;  that  is,  the  29th  day  of  October,  18S4-.  Thin  the 
state  has  fully  established.  The  state  has  also  proved  fully  that 
Michael  Purcell  came  to  his  denth  in  Josepliin(3  couuty,  Oregon, 
by  having  been  shot  with  a  gun."  "  The  only  nuiterial  allega- 
tion of  said  indictment  about  which  tliere  is  any  dispute  is  that 
which  charges  these  defendants  with  having  ])urposoly,  and 
of  deliberate  and  premeditated  malice,  caused  the  death  of 
Michael  Purcell." 

The  effect  of  this  instruction  was  virtually  to  take  away 
from  the  consideration  of  the  jur^-  tlie  only  real  disputed  ques- 
tion in  the  case.  It  states  that  "  it  is  sufficient  if  it  be  sliown 
that  the  killing  was  done  at  any  time  prior  to  the  finding  of 
the  indictment; "  and  tlicn  adds,  "  this  the  state  has  fully  estab- 
lished." The  defeiidant.?  had  pleaded  not  guilty  to  the  indict- 
ment, and  this  put  in  iSiSiie  every  material  allegation,  and  the 
proof  of  them  devolved  upon  the  state.  The  killing  of  the 
deceased  by  the  defendants  was  the  fact  in  di.sputo,  and  must 
necessarily  be  found  by  the  jury  before  the  question  as  to 
whether  it  was  done  premeditatedly  or  not  could  ai-ise.  It 
was  a  fact  for  the  jury  to  find,  an<l  belonged  exclusively  to 
their  province  to  determine  from  the  evidence.  Put  this  fact 
the  court  withdraws  from  their  consideration  by  instructing 
them  it  is  fully  established,  and  that  the  only  question  about 
which  there  is  any  dispute  is  that  which  charges  the  defend- 
ants with  having  purposely,  and  of  delil)eriite  and  premeditated 
malice,  caused  the  death  of  Micliael  Purcell.  The  effect  of  the 
instruction  was  admitted  at  the  argunumt.  but  it  was  sought  to 
avoid  it  by  the  statement  that  this  fact  was  expressly  admitted 
by  the  counsel  for  the  defendants  in  making  his  opening  state- 
ment. Put  we  do  not  thus  understand  the  record,  nor  think 
any  such  admif>sion  was  intended  or  meant,  upon  the  facts  dis- 
closed by  the  record.  The  fact  that  Purcell  had  been  killed 
was  admitted.     He  had  been  I'oimd  (hnid  in  his  cabin,  and  evi- 


STATE  V.  MACKEY. 


637 


loiirt  as  fol- 

;hat  Michael 
but  it  is  not 
3r  particular 
!  shoNvr.  that 
ding  of  this 
4.  nisi/io 
ed  fully  that 
nty,  Oregon, 
terial  allega- 
ispute  is  that 
irposely,  Jind 
he  death  of 

►  take  away 
isputed  ques- 
it  be  sliown 
lie  finding  of 
.s  fully  estab- 
to  the  indict- 
;ion,  and  the 
illing  of  the 
te,  and  must 
lestion  as  to 
Id  arise.     It 
xclusively  to 
iut  tbis  fact 
r  instructing 
icstion  about 
the  defond- 
^n.'nieditiitcd 
effect  of  the 
as  sought  to 
>sly  admitted 
pening  state- 
'd,  nor  tbinU 
tbe  facts  dis- 
l  been  killed 
l)iii,  and  evi- 


dently shot  to  death  by  some  one.  A  coroner's  jury  had  per- 
formed its  office  ov'ir  his  remains,  and  the  fact  that  Michael 
Purcell  was  killed  was  well  known  and  generally  admitted. 
And  this  is  all  Judge  Ilanna's  statement  amounted  to.  lie  ad- 
mitted that  Michael  Purcell  had  been  killed,  but  he  did  not 
admit  that  the  defendants  had  done  the  deed.  Tbe  doing  of 
the  deed  was  tbe  fact  in  dispute,  and  which  the  defendants  had 
denied  by  their  plea  to  tbe  indictment.  By  tbe  indictment  the 
defendants  were  not  only  charged  with  the  kilbng  of  tbe  de- 
ceased, but  doing  it  with  malice  and  premeditation.  These 
wore  facts  to  be  proved  by  the  state,  and  to  be  found  by  the 
jury  upon  tbe  issue  joined. 

The  killing  of  Micbael  Purcell  by  tbe  defendants  was,  there- 
fore, one  of  tbe  princij)a]  facts  in  dispute,  and  wliich  it  was  the 
duty  of  the  jury  to  determine  from  tbe  evidence.  It  was  for 
them  to  say  whether  the  evidence  fully  established  this  fact, 
and  not  for  tbe  court.  And  tbis  is  n-ndered  all  the  more  mis- 
chievous and  dangerous  from  that  wbicii  follows,  that  ''  the 
only  material  allegation  about  which  there  is  any  dispute  is  that 
which  charges  tbe  defeiulants  with  having  purjwsely  caused 
the  death  of  Michael  Purcell."'  There  is  no  other  question, 
bi^cause,  the  killing  of  the  deceased  by  the  defendants  being 
fully  established,  the  only  reuuiining  question  was  whether  it 
was  done  with  malice  and  premeditation.  Tbis  was  consistent 
with  what  had  preceded;  and  as  tbe  killing  had  been  fully 
established,  in  the  ()i)inion  of  tbe  court,  it  was  natural  that  this 
fact  should  ba\e  been  assumed,  and  tiie  attention  of  tbe  jury 
directed  to  the  only  (piestion  about  which  there  was  any  dis- 
pute.    In  /\;>ji/,'  V.  J)!rh\  ?,'!  Cab,  2 in,  the  court  say: 

"  It  is  better  for  the  court,  in  charging  the  jury  in  a  criminal 
case,  to  avoid  assuming  any  nuiterial  fact  as  pivjved,  however 
clear  to  tbe  mind  of  tbe  court  such  fact  may  seem  to  be  estab- 
lished, because  it  is  tbe  province  of  tbe  jury,  unaided  by  the 
judge,  to  say  whether  a  fact  is  proved  or  otherwise." 

Ami  in  State  >x  HVuV/*  //,  7  Or.,  ;3(il>,  Kelly.  O.  .1.,  said: 

'•  It  is  tbe  exclusive  province  of  tbe  jury  to  determine  ques- 
tions of  fact.  They  and  they  only  have  a  right  to  judge  of 
llie  credibility  of  witnesses,  and  the  weight  and  effect  of  their 
testimony.  And  it  has  always  been  held  to  be  an  erroneous 
instruction  wiien  the  court  assumed  anv  controverted  fact  to 


.5??^ 


538 


AMERICAN  CRIMINAL  REPORTS. 


be  proven,  instead  of  submitting  to  the  jury  the  question 
whether  or  not  it  has  been  established  by  the  testimony  before 
them." 

The  judgment  must  be  reversed,  and  a  new  trial  ordered. 


State  v.  McKinney. 

(31  Kan.,  570.) 

MuBDER :  Plea  in  abatement  —  Jurif  drawn  under  old  law  may  serve  in  new 
district  —  Court  setting  aside  juror  —  Adding  names  of  witnesses  to 
information  —  Evidence  —  Instructions  —  Misconduct  of  jtiry  —  Ver- 
dict received  after  adjournment. 

1.  Pr.EA  IN  ABATEMENT. —  An  indictment  was  pending  against  defendant, 
charging  liiin  witli  the  crime  of  nuirder.  While  so  pending  a  prelim- 
inary examination  was  held,  and  an  information  filed,  based  upon  hucIi 
preliminary  examination,  and  charging  the  same  offense  as  in  the  in- 
dictment. On  the  first  day  of  the  ensuing  term  of  the  district  court 
the  indictment  was,  with  leave  of  tlie  court,  nollied.  Thereafter  the 
defendant  wjut  arraigned  upon  the  information,  and  pleaded  in  al)ate- 
ment  the  pendency  of  the  indictment  at  the  time  of  the  preliminiiry 
examination  and  the  filing  of  the  information.  Held,  that  the  plea 
was  properly  overruled, 

3.   JUUV   DRAWN   BEFORE  TAKING   KKI'ECT  OP   LAW  CHANGING  DISTRICT.—  A 

jury  was  regularly  drawn  and  sumtnoned  to  attend  the  Ft^bru  iry. 
1883,  term  t)f  the  Butler  county  district  court.  That  county  w.is  tl.Pii 
a  part  of  the  thirteenth  judicial  ilistrict,  and  the  regular  term  tixeii 
for  the  third  Tuesday  of  February.  Thereafter,  and  on  February  ti, 
1883,  a  law  took  effect  creating  the  eiglitecntii  judicial  dihtrict,  and 
assigning  Butler  county  to  that  district.  The  act  creating  the  eiy;lit- 
eenth  district  provided,  among  other  things,  tiiat  all  proceeilings  of 
every  kind  and  cJiaracter,  and  all  processes  of  every  kind  ami  cluir- 
acter,  pending  in  any  of  the  courts  of  the  counties  nanied  in  the  law, 
should  stand,  bo  returnal)le,  and  triable  at  the  first  term  of  the  court 
for  said  counties,  the  same  as  if  tlie  cliange  therein  cont<Mn|iliiti'(l  hail 
not  been  made.  Held,  that  a  challenge  to  the  array  wiis  projicrly  over- 
ruled. 

3.  AUDiTiONAli  NAMES  OP  WITNESSES.—  The  court  may,  in  its  discretion, 

permit  the  county  attorney  to  indorse  the  names  of  witnesses  on  thi' 
information,  even  if  the  trial  has  connnenced. 

4.  POINTINQ  OUT  LOCUS  OF  CRIME   ON   MAP,— Wiicre  ill  a  cajiital  c.'ise  ii 

map  of  the  locality  has  been  introduced  in  evideiu^^,  and  the  place  ol 
homicide  identified  tiiereou  by  otlier  witnesses,  held,  that  tliere  is  id 
error  in  aijking  a  witness,  if  tlie  place  of  the  homicide  had   i>eeu 


■fW"' 


STATE  V.  McKINNEY. 


539 


the  questioa 
timony  before 

al  ordered. 


may  serve  in  new 
zs  of  witnesses  to 
;f  of  jury  —  Ver- 


igainst  defendant, 
pending  a  prelim- 
l,  based  upon  hucIi 
fense  as  in  the  in- 

the  district  court 
I.    Thereafter  tho 

pleaded  in  aliute- 
)£  tlie  preliniiiiiiry 
Md,  that  the  plea 

UNO  DISTRICT.—  A 

■nd  the  Fcliru  ny. 
,t  county  was  tloii 
•egular  term  tix^ii 
id  on  February  6, 
dicial  district,  ;mil 
■reatinp:  the  fisht- 
ail jtroceetlin^H  of 
■ry  kind  and  char- 
named  in  the  law, 
t  term  of  tlie  court 
cimtiMUiilatcd  had 
wius  pmiicrlyovor- 

,  in  its  discretion, 
if  witnesses  on  tlif 

n  a  capital  case  a 
e,  and  the  place  ot 
Id,  thai  there  is  im> 
oniioide  had   l)eeii 


shown  to  him,  to  point  it  out  on  the  map,  and  to  locate  a  house  and 
other  objects  with  reference  thereto. 

5.  Possession  of  means  to  commit  crime  charged.—  It  is  always  cj)m- 

petent  to  introduce  testimony  in  a  capital  case  tending  to  show  posses- 
sion in  the  defendant  of  the  means  of  committing  the  homicide  in  the 
manner  in  which  it  was  committed,  and  also  threats  and  ill-feeling  on 
his  part  towards  the  deceased. 

6.  Latitude  op  cross-examination  —  Discretion  op  court  in   admit- 

ting testimony. —  Where  on  the  trial  of  a  person  charged  with  mur- 
der, had  more  than  a  year  after,  a  witness  for  the  defendant  testiliiMl 
to  certain  material  fiicts,  to  wit,  the  appearance  of  three  strangers 
riding  rai)idly  away  from  the  place  of  the  homicide  right  after  the 
time  it  must  have  taken  place, /leW,  that  the  state  might,  on  cross- 
examination,  ask  the  witness  whom  he  told,  if  any  one,  of  these  facts. 
And  ui)on  certain  persons  being  named,  might  also,  in  the  discretion  of 
tlie  court,  prove  by  such  persons  that  nothing  of  the  kind  was  ever 
told  them. 

7.  Corroborating  testimony  op  witness  sought  to  be  impkachei).— 

Where,  for  the  purpose  of  impe.i<!hing  a  witness  for  the  state,  the  de- 
fendant introduces  witnesses  who  testify  that  at  the  preliuunary  exam- 
ination they  heard  the  former  witness,  and  that  lie  did  ncjt  then 
mention  the  facts  testified  to  by  him  on  the  trial,  held,  that  the  rotate 
might  in  rebuttal  call  other  witnesses  also  present  at  such  examination 
to  testify  that  they  heard  the  witness,  .and  that  he  did  then  mention 
these  facts. 

8.  Admonition  to  jury  before  separating  need  not  be  uei'eatei>.— 

It  is  not  essentia'  that  the  admonition  to  l)e  given  to  the  jin-y  at  the 
time  of  each  adjournment  be  in  the  very  language  of  tlu'  statute ;  it  is 
enough  that  the  duty  of  the  jury  is  fully  and  clearly  disclosed  to  them 
by  the  court;  and  an  admonition  not  to  converse  "  in  regard  to  this 
case"  is,  when  no  objection  is  nuide  at  the  tune,  sufticieiit,  allhough 
the  language  of  the  statute  is  "  on  any  subject  connected  with  the 
trial." 

9.  Permitting  jury  to  separate. — Tlie  court  may  permit  a  separation  of 

the  jury  after  the  instructions,  during  the  arguments  of  counsel,  and 
at  any  time  before  they  finally  retire  under  charge  of  their  baililf  for 
deliberation. 
10.  Public  sentiment  —  Character  of  offense. — The  court  dosed  its  in- 
structions to  the  jury  with  these  words;  "It  is  claimed  that  a  violated 
law,  by  tlie  commission  of  a  brutal  and  blood-curdling,  cruel  crime, 
lies  in  out'  scale  of  the  balance,  and  the  liberty  and  life,  all  tliat  there 
is  dear  and  valuable  in  life  to  the  citizen,  freigiits  the  other.  I  iiave 
already  instructed  you  that  the  defendant  is  ]iresuni»d  innocent  until 
his  guilt  is  made  to  appear  beyond  areasonable  doubt,  to  be  determined 
by  the  rules  given  you  in  these  instructions.  No  disastrous  conse- 
(piences  to  result  to  the  defendant  as  the  results  of  your  verdict,  or  the 
clanun-s  of  a  discontented  populace,  can  properly  find  place  for  con- 
sideration in  your  deliberations ;  but  the  imperative  and  inexorable 
demands  of  the  tluty  inii)osed  on  you  are  to  seek  for  the  truth  and 


m 


540 


AMERICAN  CRIMINAL  REPORTS. 


fearlessly  pursue  it  in  your  verdict."  Held  that,  as  the  testimony 
tended  to  show  a  wanton  and  cold-blooded  murder,  there  was  no  error 
in  stating  in  the  language  used  tiie  claims  of  the  two  parties,  and  that 
it  cannot  be  presumed  that  there  was  no  occasion  for  cautioning  the 
jury  against  the  improper  influences  named. 
11.  Receiving  verdict  durinq  recess,  technical  error.— "When  without 
objection,  after  the  court  had  adjourned  to  the  next  morning,  a  ver- 
dict was  received,  opened  and  read;  and  then,  at  the  instance  of  de- 
fendant, the  jury  were  polled,  Iwld,  that  although  the  verdict  wjis 
not,  as  the  statute  provides,  "rendered  in  open  court,"  yet  tlie  error 
was  simply  a  technical  one,  and  that,  under  section  2!)3  of  the  Code  of 
Criminal  Procedure,  it  must  be  disregarded  on  ai)peal. 

Appeal  from  Butler  District  Court. 

A.  L.  Redden^  T.  O.  Shhui  and  D.  McKlnney^iov  appellant. 
IF.  A.  Johnson,  attorney -general,  C.  .Y.  Stemj  and  George 
Qm'dner,  county  attorney,  for  the  state. 

Brewer,  J.  The  appellant  Avas  convicted  in  the  district 
court  of  Butler  county  of  the  crime  of  murder  in  the  first  de- 
gree, in  the  homicide  of  one  William  I[.  Beedor,  and  from  the 
conviction  brings  his  ajipeal  to  this  coui't.  The  case  has  been 
elaborately  briefed  and  ai'gued  by  counsel  on  both  sides.  A 
great  many  rulings  of  the  district  court  have  been  ]K»intod  out 
in  which,  as  is  claimed  by  appellant,  are  errors  prejudicial  to 
his  substantial  rights.  We  have  examined  the  case  with  caro, 
giving  that  consideration  to  every  question  which  the  impor- 
tance of  the  case  denuinds. 

We  shall  proceed  now  to  notice  the  various  (juestions.  pre- 
mising that,  as  to  some  of  them,  they  are  fully  covei-ed  by 
prior  rulings  of  this  court.  Of  course,  as  to  such  m.'itters.  it 
will  be  generally  sullicient  to  refer  to  the  ))rior  rulings. 

I.  It  ap]>ears  an  indictment  was  found  against  the  defend- 
ant, and  that  while  that  indictment  was  ponding  the  state 
caus(Ml  a  preliminary  examination  to  be  had,  .'ind  thereafter 
an  information  to  be  filed.  On  the  first  day  of^the  ensuing 
term  the  county  attorney  noJVud  the  in<lictment.  with  leave  of 
the  court.  On  the  arraignment  of  the  defendant  he  pleaded 
in  abatement  that  at  the  time  of  the  preliminary  examination, 
and  of  filing  this  inforniation,  there  was  pending  against  him 
an  indictment  for  the  same  ollVmso.  This  plea  was  overruled, 
and  properly  so.     Stuti'  v.  Citrths,  29  Kan.,  384.     It  was  tluire 


STATE   I'.  McKINNEY. 


541 


as  the  testimony 

liere  was  no  error 

parties,  and  that 

V  cautioning  the 

—  Wlien  without 
t  morning,  a  ver- 
le  instance  of  de- 
the  verdict  waa 
rt,"  yet  tlio  error 
!)3  of  the  Code  of 
d. 


,  for  appelliint. 
''1/  and  George 

n  the  district 
in  the  first  do- 
,  and  from  tlie 
(  case  has  hoen 
l)oth  sides.  A 
en  ]iointed  out 
prejudicial  to 
ase  witli  care, 
ich  tlie  inipor- 

(juestions.  pre- 
\y  covei'ed  by 
ich  matters,  it 
•idings. 

st  the  defend- 
ilin^  the  state 
md  tliereaftcr 
)f*tlie  ensuinj^ 
.  with  leave  of 
mt  he  j)leadod 
y  examination, 
ig  against  him 
was  overruled, 
It  was  thore 


held,  upon  full  examination,  that  the  pendency  of  one  indict- 
ment or  information  was  no  bar  to  the  filing  of  another. 
Counsel,  distinguishing  that  case,  say  that  the  statute  provides 
that  offenses  may  be  prosecuted  either  by  indictment  or  in- 
formation; that  the  disjunctive  word  "or"  being  used,  the  state 
is  limited  from  the  inception  to  the  close  to  one  form  of  pro- 
cedure; that  while  during  the  pendency  of  one  indictment  it 
might  cause  another  to  be  filed,  and  the  same  with  i-espect  to 
an  information,  yet  that  while  a  proceeding  by  indictment  is 
pending  it  cannot  change  the  procedure  by  filing  an  informa- 
tion, and  thus  prosecute  by  both  indictment  and  information. 
This  attempted  distinction  is  not  well  taken.  Of  course,  a 
party  cannot  be  ])ut  upon  trial  upon  an  indictment  and  an  in- 
formation for  the  same  offense  at  the  same  time;  and  in  this 
sense  the  state  cannot  prosecute  by  indictment  and  information. 
But  the  indictment  and  information  are  simply  the  ])leadings 
on  the  part  of  the  state.  Kach  one  constitutes  a  separate 
action,  and  it  is  not  bound  to  dismiss  one  action  before  it  com- 
mences another.  Here,  befoi-e  the  defendant  was  called  to 
plead  to  the  information,  the  indictment  had  l)een  nol/ied,  and 
there  was  pending  no  action  by  indictment  against  him. 

11.  Defendant  claims  tliat  the  court  erred  in  overrulin«>'  his 
challenge  to  the  array.  The  facts  are  tiiat.  at  the  time  the 
jurors  were  drawn  and  sumuioned,  Uutler  county  was  a  part  of 
the  thirteenth  judicial  district,  and  its  term  of  court  for  1SS3 
would  have  commenced  on  the  third  Tuesday  of  February. 
For  that  term  the  jurors  were  drawn  and  summoned.  V>y 
cha[)ter  li»2,  Laws  of  1883,  which  took  effect  February  6,  1883, 
tlie  eighteenth  judicial  district  was  created,  Butler  county 
plactMl  in  that  district,  and  the  next  ensuing  term  fixed  for  the 
first  Tuesday  in  May.  Tliere  was,  therefore,  no  February  term 
of  the  district  court  in  Hutler  countv.  AV'^itiunit  anv  new  draw- 
ing  the  jurors  summoned  appeared  at  the  May  t(>iiii.  It  is 
conttiiided  that  there  should  have  been  a  new  drawing  and 
summoning  of  jurors.  We  think  not.  Section  ;!  of  said  clia[)- 
ter  is  broad  enough  to  cover  the  drawing  and  summoning  of 
the  jury.     It  reads  as  follows: 

"  All  proceedings,  of  every  kind  and  character,  and  all  bonds, 
recognizances,  subpienas,  and  all  the  processes  of  every  kind 
and  character,  pending  in  any  of  the  courts  of  said  counties  or 


-:jr  ■ 


'}^f,'-. 


542 


AMERICAN  CRIMINAL  REPORTS. 


either  of  them,  at  the  date  of  the  passage  of  tliis  act,  shall 
stand,  be  returnable  and  triable  at  the  liret  term  of  the  court 
for  said  counties,  as  specified  in  this  act,  the  same  as  if  the 
chanfje  herein  contemplated  had  not  been  made." 

While  it  may  be,  as  counsel  say,  that  the  drawing  and  sum- 
moning of  jurors  is  not  process  issued  out  of  the  district  court, 
yet  the  list  of  persons  so  drawn,  required  by  chapter  54,  Couip. 
Laws  1879,  §  14,  par.  8,  is  equivalent  to  a  venire,  which,  by  sec- 
tion 15,  the  sheriff  is  required  to  serve  and  return  to  the  district 
court,  and  the  jurors  are  summoned  to  appear  and  serve  in  that 
court;  so  that  it  comes  within  the  broad  language,  all  proceed- 
ings and  processes  of  every  kind  and  character  ponding  in  the 
court. 

Ill,  Appellant  insists  that  the  court  erred  in  sustaining  tlie 
challenge  of  the  state  to  the  juror  Henderson.  The  facts  are 
these;  After  the  regular  viviire  had  been  exhausted,  the  follow- 
ing agreement  was  made  as  to  a  special  vcn/rf:  The  court,  by 
agreement  of  counsel  for  the  state  and  the  defendant,  nauied 
certain  persons  to  be  summoned  to  attend  as  jurors  in  said 
cause,  it  being  agreed  that  no  i)erson  should  be  uauied  from 
.\ugusta,  El  Doi'ado,  Sjjring,  Little  Walnut  or  Douglass  town- 
shi|)s.'"  In  pursuance  of  this  agreement  the  court  named  a  list 
of  jurors,  among  them  Henderson,  who  were  summoned  by  the 
sheriff.  It  api)eared  upon  the  examination  of  the  juror  Ilon- 
derson  that  he  was  a  resident  of  Si)ring  townshij),  tlie  home  uf 
the  defendant,  and  while  from  such  exaniinal."*)n  it  appears 
probable  that  he  was  a  qualified  juror,  yet  the  court  excused 
him  on  the  ground  of  his  residence.  In  this  we  see  no  error. 
The  fact  that  the  court  excuses  a  jui'or  is  not  generally  suffi- 
cient ground  for  a  reversal,  providing  tiie  jury  finally  obtained 
is  unimpeachable  {Stout  v.  /L/att,  13  Kan.,  2'A'2:  I'lHroad  Co. 
V.  Franklin,  23  Kan.,  74;  State  v.  Milhr,  2!*  Kan..  \'.\)\  and  in 
this  case  the  juror  was  excused  by  virtue  of  an  agrceuicnt  i)e- 
tween  counsel  —  an  agreement  entered  into  in  the  interests  of 
justice,  and  for  the  purpose  of  facilitating  the  sclcctiun  of  a 
jury.  Counsel  say  that  a  defcmdant  in  a  capital  case  cannot 
waive  any  of  his  legal  rights,  and  that  he  has  such  right  to  the 
retention  on  the  jury  of  any  juror  who  shows  hiiusclf  not  ]vm- 
sonally  (liscpuilitied.  We  do  not  think  the  pro[iosirion  of  coun- 
sel is  correct,  at  least  as  broadly  as  it  is  stated;  and  \vc  see  no 


STATE  V.  McKlNNEY. 


543 


lis  act,  shall 
of  the  court 
me  as  if  the 

ing  and  sum- 
listrict  court, 
;er  54,  Com  p. 
k'hich,  by  sec- 
o  the  district 
serve  in  that 
!,  all  procoed- 
mding  in  tlie 

ustaining  llie 
The  facts  are 
d,  the  follow- 
'he  court,  hy 
idant,  named 
iirorK  in  said 
named  from 
»uglass  town- 
named  a  list 
nonod  by  the 
e  juror  11  en- 
,  the  home  of 
m  it  appears 
ourt  oxcLi&ed 
see  no  error. 
•Miorally  siiffi- 
ally  obtained 
li'iHroiid  Co. 
[..  4.".);  and  in 
•  rcLMiient  iie- 

0  interests  of 
select  ion  of  a 

ease  eannut 

1  right  to  the 
iisclf  not  pei- 
lition  of  eoiin- 
nd  we  see  no 


real  substantial  waiver  of  any  rights.  The  court  was  called 
upon  to  name  the  jurors  who  should  be  summoned;  and  when, 
upon  the  agreement  or  suggestion  of  counsel,  it  determined  to 
select  jurors  from  outside  those  townships  in  which  the  inhab- 
itants were  most  likely  to  be  familiar  with  the  facts,  or  influ- 
enced by  their  acquaintance  and  friendship,  it  was  simply 
exercising  a  wise  discretion;  and  if  thereafter  it  appeared  that 
l)y  mistake  a  juror  from  one  of  these  townships  had  been 
named,  there  was  no  impropriety  in  setting  him  aside. 

IV.  It  is  insisted  that  the  court  erred  in  permitting  the 
county  attorney  to  indorse  the  names  of  two  witnesses  on  the 
information.  It  has  been  repeatedly  held  in  this  court  that 
such  action  is  within  the  discretion  of  the  trial  court.  The 
State  V.  DickftoH,  6  Kan.,  209;  The  State  v.  Mediicott,  9  Kan., 
•257;  The  State  v.  Cook,  30  Kan.,  82. 

There  is  nothing  in  the  rule  of  the  court  quoted  in  the  record 
which  substantially  abridges  this  discretion,  or  which  renders 
the  action  of  the  court  in  this  case  subject  to  just  exceptions. 

V.  We  now  pass  to  a  series  of  exceptions  taken  to  the  ruling 
of  the  court  on  the  rejection  and  admission  of  testimony. 
Among  these  may  be  noticed  the  following;  The  witness  Gal- 
lager  was  permitted,  over  the  objection  of  defendant,  to  testify 
to  the  place  where  he  was  told  that  tlie  body  of  Keeder  had 
been  found,  and  from  that  information  located  \\\^o\\  a  map  the 
position,  direction  and  distance  of  certain  other  ])oints.  We 
see  nothing  in  this  objectionable.  The  map  had  been  intro- 
duced in  evidence  long  before  this  witness  was  called,  the  place 
where  the  body  was  found  identified  by  other  witnesses,  and 
the  only  object  of  this  witness'  testimony  was  the  location  of 
other  ])()ints  with  respect  to  the  spot  wiiere  the  body  was  foimd. 

Vi.  Again,  a  series  of  objections  runs  to  testimony  of  this 
nature:  Witnesses  were  permitted  to  testify  as  to  seeing  a 
pistol  in  the  pocket  of  «lefendant  several  days  before  the  lii>mi- 
cide;  as  to  expnvssions  of  ill-feoling  and  threats  on  the  part  of 
the  d«3f(>ndant  towards  the  deceased  a  month  or  two  befoi-e; 
also  to  the  faet  of  a  (]uarrel  between  the  partiv^s  about  ten 
months  before  {\w  homieide.  and  that  defendant  was  beaten  in 
that  quarrel;  also  to  the  faet  that  a  {>istol  was  brought  to  one 
wittu»ss»  a  i>tu\smith,  about  a  month  before  the  homicide,  which 
he  tlh)ught  was  the  one  fouiul  after  the  homicide  in  the  house 


^'.T* 
i 


544 


AMERICAN  CRIMINAL  REPORTS. 


of  defendant;  and  in  resj^ect  to  the  probability  of  the  ball 
found  in  the  body  of  deceased  having  been  lired  out  of  such 
pistol.  Now,  in  respect  to  all  this  testimony,  we  remark  that 
it  was  legitimate  for  the  state  to  prove  in  the  possession  of  de- 
fendant the  means  of  committing  the  homicide  in  the  manner 
in  which  it  was  committed,  and  also  the  fact  of  prior  difficulty 
and  continued  ill-feeling  as  furnishing  the  motive  therefor,  it 
may  be  conceded  that  the  identilication  of  the  pistol  was  not 
absolute  and  perfect;  that  the  quarrel  was  one  of  many 
months'  standing,  and  therefore  the  presumption  of  continued 
ill-feeling  and  present  motive  Avas  not  as  strong  as  though  the 
quarrel  had  been  of  recent  date :  and  yet  such  testimony  was 
not  incompetent.  It  was  for  the  jury  to  determine  its  weight. 
It  was  enough  for  the  court  to  say  that  the  testimony  was 
proper. 

In  The  People  v.  Bemis,  16  N.  W.  Rep.,  794  (a  Michigan 
case),  Cooley,  J.,  in  delivering  the  opinion  says: 

"  The  prosecution  was  permitted  to  show  ill-foeling  on  the 
part  of  the  respondent  towards  Henderson,  extending  back  two 
years  before  his  death.  This  was  oljjected  to  as  too  remote. 
It  was  certainly  going  back  a  good  ways,  but  we  cannot  say 
the  trial  judge  exceeded  the  limits  of  a  just  discretion  in  receiv- 
ing the  evidence.-' 

VII.  The  testimony  on  the  part  of  the  state  did  not  disclost! 
an}''  personal  observation  on  the  part  of  any  witness  of  tlie 
homicide.  It  showed  the  fact  that  just  ))rior  thereto  the  de- 
fendant was  seen  riding  towards  the  place  wluM-e  the  body  of 
deceased  was  found,  and  that  immediately  thereafter  he  was 
seen  riding  rapidly  therefrom.  The  trial  took  place  more  than 
a  year  after  the  homicide;  and  on  that  trial  tiie  defendant  in- 
troduced two  witnesses  living  in  the  immediate  vicinity,  wiioso 
testimony  was  that  at  or  about  the  time  of  the  homicide  they 
saw  riding  away  therefrom,  at  a  rapid  gait,  a  man  on  a  dilfercMt 
colored  horse  from  that  ridden  by  defendant,  and  two  parties 
in  an  open  buggy.  Of  course,  such  testimony  rai.sed  a  question 
as  to  whether  the  homicide  was  not  committed  by  one  of  these 
three  parties,  instea<l  of  by  defenthmt.  Evidently  this  testi- 
mony was  a  sur|»rise  to  the  counsel  for  tiie  state,  and  on  cross- 
examination  they  asUed  i\w  witnesses  if  thty  were  not  aware 
of  the  excitement  which  prevailed  in  the  vicinity  at  the  time  of 


STATE  V.  McKINNEY. 


545 


y  of  the  ball 
[  out  of  such 
5  remark  that 
ssession  of  de- 
iu  the  manner 
)rior  ditWculty 
3  therefor.  It 
pistol  was  not 
one  of  many 
I  of  continued 
us  though  the 
testimony  was 
ine  its  weight, 
testimony  was 

1  (a  Michigan 

feeling  on  the 
ulingback  two 
IS  too  remote, 
we  cannot  say 
otion  in  receiv- 

lid  not  disclt)S(! 
witness  of  tlie 
thereto  the  de- 
M'c  the  i)ody  of 
reafter  he  was 
lace  more  than 

defendant  in- 
vicinity,  whoso 

homicide  thoy 
n  on  adillenMit 
nd  two  part  ios 

sed  a  question 
by  one  of  these 

iitly  this  testi- 
',  and  on  cross- 
viHV  not  awaic 
y  at  the  time  of 


the  occurrence  of  the  homicide,  which  question  thoy  answered 
in  the  affirmative,  and  then  if  they  told  any  one  of  what  they  had 
seen.    This  question  one  of  the  witnesses  answered  in  the  af- 
firmative, saying  that  she  had  told  a  neighbor  shortly  after  the 
occuiTence.     In  rebuttal,  this   neighbor  was  introduced  and 
asked  if  anything  of  the  kind  was  said  to  her.     ( )ver  the  objec- 
tion of  defendant  she  was  ])ermitted  to  answer,  and  testified 
that  nothing  of  the  kind  was  intimated  to  her.     We  think  it 
wiis  within  the  discretion  of  the  court  to  permit  the  impeach- 
ment of  the  witness  in  the  manner  in  which  it  was  done.     Of 
course,  it  was  material  to  know  whether  such  parties  were 
really  seen  in  the  vicinity  of  the  homicide  at  the  time  of  its 
occurrence.     It  is  alwa^'B  competent  to  impeach  a  witness  by 
proof  of  statements  outside  the  court-room,  contradictory  of 
those  made  on  tiie  witness  stand,  and  we  tliink,  within  the 
same  principle,  it  is  competent  to  prove  that  a  witness  claiming 
to  be  possessed  of  information  most  important,  and  aware  of 
the  occurrence  and  the  excitement  caused  thereby,  did  not,  as 
she  claimed,  disclose  the  information  to  any  one.     It  is  against 
human  nature  that  a  witm^ss  possessed  of  such  important  in- 
formation, and  aware  of  the  occurrence  and  the  feeling  per- 
vading in  the  community  in  consequence  then^of,  should  not 
disclose  it  to  any  one,  and  when  such  witness  claims  that  she 
<lid,  in  fact,  disclose  the  information  to  cei-tain  parties,  it  was 
competent  to  show  by  such  parties  that  she  did  not.     It  cer- 
tainly was  strong  impeacliing  testimony,  and,  ns  such,  we  think 
it  was  legitimate.     Powers  v.   L^ach,  2(5  Vt.,  270;    Cadij  v. 
Owen,  SI  Vt.,  508;  lloice  v.  Thaijer,  17  riclc,  i)l. 

VIII.  Two  witnesses  testified  that  they  went  to  arrest  de- 
fendant on  the  day  of  the  homicide;  that  at  the  time  of  arrest 
they  said  nothing  to  him  except  that  Reeder  was  killed,  and 
that  he  was  charge<l  with  the  homicide;  that  thereupon  he  said 
to  his  wife  and  iiiredhaml  that  Reeder  had  been  found  in  the 
road  shot  and  killed,  ami  that  he  had  to  go  to  Augusta  to 
stand  a  preliminary  examination  therefor.  Impeaching  these 
witnesses,  the  defense  offered  two  witnesses  present  at  the  pre- 
liminary examination,  who  testified  tliat  they  heard  the  two 
prior  witnesses  (m  the  preliminary  examination,  and  that  they 
had  no  recollection  of  these  witnesses  giving  any  statement  as  to 
.such  language  ^^w  the  part  of  defendant  at  the  time  of  the  arrest. 
Vol.  V-35 


»»!  Mf* 


640 


AMERICAN  CRIMINAL  REPORTS. 


.  7 


In  rebuttal,  and  as  rorroborativo  of  tlio  first  two  witnesses,  the 
state  introduced  a  witness  who  was  present  at  the  preliminary 
examination  and  who  testified  that  tlieso  witnesses  did  ^ive  tlie 
same  testimony  then  as  to  the  language  of  defendant.  "NVc 
think  this  evidence  Avas  competent.  Of  course  the  testimony 
of  the  two  witnesses  offered  by  the  defense  was  in  the  nature 
of  impeachment,  as  tending  to  show  that  the  matter  referred  to 
by  the  plaintiff's  witnesses  was  an  after-tiiought,  and  it  was 
perfectly  legitimate  to  attack  this  impeachment  by  testimony 
that  at  the  very  time  named,  and  immediately  after  the  arrest, 
they  told  the  same  story.  These  are  all  the  matters  in  respect 
to  the  rulings  of  the  court  in  the  rejection  and  admission  of 
testimony  which  it  will  W  necessary  to  notice.  Many  other 
matters  of  a  similar  nature  are  referred  to  by  counsel  in  their 
elaboi'ate  brief,  but,  after  a  careful  examination  of  them  all, 
we  are  constrained  to  say  that  nothing  appears  of  sullicient 
moment  to  justify  any  interference  with  the  verdict.  We 
think  that  it  may  fairly  be  said  that  there  is  no  error  in  the 
ruhngs  of  the  court  in  respect  to  the  testimony  open  to  just 
criticism.  No  testimony  of  an  improper  nature  was  adniittoil, 
and  everytliing  which  would  have  a  legitimate  bearing  upon 
any  question  of  fact  in  the  case  was  admitted.  We  think, 
therefore,  this  entire  series  of  objections  is  without  just  foun- 
dation, and  must  be  overruled. 

IX.  AVe  pass  now  to  an  objection  of  a  different  nature.  It 
is  insisted  that  the  court  failed  to  give  ])roper  admonitions  to 
the  jury  at  the  time  of  the  several  adjournments.  It  is  not  ])re- 
tended  that  an  admonition  was  not  given,  but  the  claim  is  tliat 
it  was  not  sufficiently  full  and  specific.  The  section  of  the 
statute  l)earing  thereon  reads  as  follows: 

"  AVhen  jurors  are  jiermitted  to  se})arate,  after  being  impan- 
eled, and  at  each  adjournment,  they  must  be  admonished  l)y 
the  court  that  it  is  their  duty  not  to  converse  among  themselves, 
nor  suffer  others  to  converse  with  them,  on  any  subject  con- 
nected with  the  trial,  or  to  form  or  to  express  any  opinion 
thereon,  until  the  cause  is  finally  submitted  to  them." 

Upon  the  occasion  of  the  first  adjournment,  after  the  jury 
had  been  impaneled,  the  court  admonished  them  as  follows: 

"  You,  gentlemen  of  the  jury,  will  remember  the  charge  I 
have  given  3'ou,  not  to  talk  to  each  other  or  allow  any  person 


STATE  r.  McKINNEY. 


i)  1  1 


witnesses,  the 
ic  preliminary 
Bs  did  ^ive  the 
fendant.  "NV^e 
the  testimony 
in  the  nature 
tor  referred  to 
it,  and  it  was 

by  testimony 
ftcr  tlie  arrest, 
iters  in  respect 
1  admission  of 
Many  other 
junsel  in  tlieh* 
n  of  them  all. 
rs  of  sullicient 

ver<liet.  We 
lo  error  in  the 
ly  oi)en  to  just 

was  admitted, 
)  bearin<^  upon 
d.  AVo  think, 
lout  just  foun- 

mt  nature.  It 
idmonitions  to 
It  is  not  pre- 
le  claim  is  that 
section  of  the 

'  beinf?  inipan- 
idmonishctl  by 
mg  tliemselvcs, 
ly  subject  con- 
!ss  any  opinion 
hem." 

after  the  jury 
ri  as  follows: 

r  the  cliarge  I 
low  any  person 


to  talk  to  you,  or  form  any  opinion  in  regard  to  this  case,  until 
it  shall  be  finally  submitte<l  to  you;  not  to  talk  about  or  ex- 
press any  opinions ;  and  be  hero  prouijjtly  at  8  o'clock  in  the 
morning." 

The  subsequent  admonitions  were  ecpially  full  and  s])eciric, 
and  generally  referred  to  the  adnumition  previously  given. 
Now,  the  specific  ol)jection  is  that  while  the  statute  prescribes 
that  it  is  their  duty  not  to  converse  "on  any  subject  connected 
with  the  trial,"  the  language  of  the  adnumition  was  simply  "in 
re<rard  to  this  case,"  and  it  is  claimed  that  there  is  a  substantial 
and  imjjortant  dilference  between  these  two  expressions.  Wo 
do  not  think  there  was  any  such  dilference  as  Avill  vitiate  the 
proceedings.  The  language  of  the  admonition  is  broad,"/?) 
n'ijard  to  thJii  c(iii<\"'  and  embraces  in  it  everything  involved  in 
the  trial.  AVe  do  not  understand  that  the  statute  imperatively 
re(|uires  that  the  court  shouhl  use  its  very  language,  but  it  is  at 
liberty  to  use  other  words  and  expressions,  providing  in  so  do- 
ing it  gives  an  e(pially  full  and  specillc  cantion  and  admonition: 
and  this,  we  think,  it  clearly  did.  Further,  it  may  be  noticed 
that  no  objection  was  made  by  <lefendant  at  the  time  to  any 
admonition,  or  any  suggestion  that  it  lacked  fullness,  or  was 
in  any  respect  dellcient.  See,  in  respect  to  this  matter  of  ad- 
nioniti(m,  the  case  of  I'/ic  Sfafc  v.  StacMouse,  2+  Kan.,  J:45. 

X.  It  is  objected  that  the  court  erred  in  permitting  the  jury 
to  separate  after  having  been  charged,  and  in  support  of  this 
the  cases  of  ]\la(hJen  r.  Tlic  SUitcA  Kan.,  340;  Lewis  v.  The 
Siat<\  4  Kan.,  21M1,  are  cited.  It  does  not  appear  from  the 
record  that  the  jury  were  ])ermitted  to  separate  after  the  case 
had  finally  been  submitted  to  them  for  decision.  It  does  ap- 
pear that  after  they  had  been  charged,  and  after  two  argu- 
ments, one  on  either  side,  the  trial  was  adjourned  until  the 
next  morning,  and  the  jury,  after  due  admonition,  permitted 
to  separate;  and  also  by  the  aHidavits  of  counsel,  that,  after 
the  arguments  were  all  finished,  the  court  took  a  short  recess 
before  sending  the  jury  out  for  deliberation,  and  that  during 
the  recess  there  was  a  separation.  Now,  in  the  case  of  Mad- 
iJcn  r.  17ie  State,  the  jury  had  actually  retired  for  the  purpose 
of  deliberation,  and  the  separation  of  the  jurors  was  not  by 
authority  of  the  court,  but  simply  at  the  instance  or  through 
the  connivance  of  the  bailiff  in  charge.    The  distinction  between 


^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


■^  Itt   12.2 
2.0 


lit 

u 


IL25  nu  liA 


IU4I 


6" 


Hiotograiiiic 

Sdences 

Corporation 


:i:r^ 


v 


<> 


ti  WIST  MAIN  STRUT 

WIBSTIR,N.Y.  14SM 

(716)173-4503 


4^ 


IlS 


5:t8 


AMERICAN  CRIMINAL  REPORTS. 


iv. 


the  two  cases  is  marked.  While  in  the  Madden  Case  the  argu- 
ment })recede(l  the  charge,  and  after  the  charge  there  was 
nothing  for  the  jury  to  do  but  to  retire  and  dehberate,  yet, 
under  the  present  statute,  the  charge  precedes  the  argument; 
so  that,  especially  in  an  important  case,  many  hours  may  inter- 
vene between  the  cluirge  and  the  retirement  for  final  delibera- 
tion. And  while  the  arguments  of  counsel  are  being  made, 
and  up  to  their  retiring  for  final  deliberation,  we  think,  not- 
withstanding the  first  sentence  in  section  237  of  the  Code  of 
Criminal  Procedure,  that  the  court  may,  under  proper  admo- 
nitions, permit  the  jury  to  separate.  We  see,  therefore,  no 
error  in  the  ruling  of  the  court  in  this  respect. 

XI.  It  is  claimed  that  the  court  erred  in  several  of  its  in- 
structions. Some  half  dozen  are  briefly  criticised.  We  huvo 
examined  the  charge  as  a  whole,  and  the  several  instructions 
particularly  criticise<i,  and  we  think,  both  as  a  whole  and  in  its 
several  parts,  it  presented  the  law  clearly  and  correctly.  Some 
of  the  questions  raised  by  counsel  have  been  already  j)assotl 
upon  by  this  court  and  need  not  be  referred  to.  The  fourtli 
instruction  is  objected  to  on  the  ground  that  it  assumes  that 
the  defendant  committed  the  assault  that  caused  the  death  of 
Reeder.  It  does  use  the  expression  "  said  assault,"  but  'hat,  of 
course,  refers  to  what  is  said  in  ])rior  instructions,  and  in  thoiu 
the  question  as  to  who  committed  the  assault  is  distinctly  left 
as  a  fact  to  the  consideration  of  the  jury.  If  what  is  m(;iint 
by  the  phrase  "reasonable  doubt"  can  be  made  more  intelligi- 
ble in  any  otiier  way  than  by  the  use  of  the  expression  itself, 
Ave  think  the  seventh  instruction  was  calculated  to  accomplish 
this  result.  Its  language  is,  "not  mere  conjectures  or  fanciful 
speculations,  but  such  real  and  substantial  doubts  as  would 
prompt  your  action  in  any  important  event  in  which  you  might 
be  interested."  Certainly  of  that  defendant  has  no  right  to 
complain.  Wo  see  nothing  in  the  twelfth  instruction  deserving 
of  the  criticism  placed  ui)on  it  by  tlie  counsel.  It  simply  states 
what  is  claimed  on  the  one  side  and  the  other,  and  appeals 
to  the  jury,  giving  the  defendant  the  benefit  of  a  reasonable 
doubt,  to  return  a  true  verdict,  uninfluenced  by  improjier  con- 
siderations. Obviously  some  such  instructions  as  that  are  often 
called  for  by  circumstances  surrounding  the  trial,  and  we  can- 
not say  that  such  did  not  exist  in  this  case,  or  that  the  court 


STATE  V.  McKINNEY. 


540 


lase  the  argu- 
;e  there  was 
ihberate,  yet, 
le  argument ; 
irs  may  intor- 
fmal  dehbera- 
}  being  made, 
\'Q  think,  not- 
f  the  Code  of 
proper  admo- 
therefore,  no 

^'cral  of  its  in- 
3d.     We  have 
il  instructions 
hole  and  in  its 
erectly.    Some 
ah'oady  })asseil 
a.    The  fourth 
,  assumes  that 
pd  the  death  of 
t,"  but  ^;hat,  of 
IS,  and  in  tlieiii 
distinctly  left 
what  is  meant 
more  intelligi- 
pression  itself, 
to  accomplish 
ires  or  fanciful 
lubts  as  would 
hich  you  might 
as  no  right  to 
iction  deserving 
It  simply  states 
er,  and  appeals 
of  a  reasonable 
^  impro])er  con- 
is  that  are  often 
ial,  and  we  can- 
r  that  the  court 


erred  in  its  admonitions  in  respect  to  such  matters.    It  seen\s 
to  us  that  the  instructions  were  correct  and  must  be  sustained, 

XII.  It  is  insisted  that  the  court  erred  in  not  granting  a  new 
trial  on  the  ground  of  tlie  misconduct  of  the  jury  and  the 
county  attorney.  In  reference  to  the  former,  putting  all  the 
affidavits  of  the  jurors  together,  wo  think  the  facts  deducible 
therefrom  are  these:  After  the  jury  had  agreed  upon  their  ver- 
dict and  it  had  been  reduced  to  writing,  signed  by  the  foreman, 
placed  in  a  sealed  envelope,  and  while  the  jury  were  waiting 
for  the  bailiff  to  bring  them  into  the  court-room,  one  of  their 
number  referred  to  the  ftact  that  defendant's  Avife  had  not  been 
called  as  a  witness,  using  language  like  this :  "  If  the  defendant, 
McKinney,  is  not  guilty  why  did  he  not  produce  his  hired 
liand,  ♦  le  young  man  on  liis  place,  and  his  wife,  to  show  his 
whereabouts,  and  where  lie  was  during  the  time  which  he  told 
the  boy  to  say  that  he  had  not  been  away  from  home ;  if  he 
was  not  away  liis  wife  must  have  known  it."  This,  it  is  claimed, 
is  in  direct  violation  of  section  215  of  the  Code  of  Criminal  Pro- 
cedure, which  authorizes  the  defendant  in  a  criminal  action 
and  his  wife  to  testify  on  his  behalf,  which  section  contains 
this  proviso : 

"That  the  neglect  or  refusal  of  the  person  on  trial  to  testify, 
or  of  a  wife  to  testify  in  behalf  of  her  iiusband,  shall  not  raise 
any  presumption  of  guilt,  nor  shall  the  circumstance  be  referred 
to  by  any  attorney  prosecuting  in  the  case,  nor  shall  the  same 
be  considered  by  the  court  or  jury  before  whom  the  trial  takes 
place." 

Upon  these  facts  wo  remark  that  the  verdict  was  agreed 
upon  and  ])repared  before  any  roferoncc  was  made  to  the  fail- 
ure of  defendant's  wife  to  testify,  and  that  there  is  nothing  to 
show  that  such  failure  was  in  any  numner  considered  by  any 
of  the  jury  in  coming  to  their  conclusion.  We  lay  out  of  con- 
sideration so  much  of  the  affidavits  of  the  jurors  as  states  that 
they  were  not  influenced  by  and  did  not  consider  that  fact  in 
coming  to  their  conclusion ;  for  probably  that  is  a  nuitter  which 
inheres  in  the  verdict,  and  so  one  upon  which  jurors  may  not 
testify.  But  if  it  is  competent  for  the  defendant  to  show  by 
the  jurors  that,  such  a  c()nv<M'sation  took  place,  it  is  equally 
competent  for  the  state  in  like  numner  to  show  when  and  under 
what  circumstances  it  took  place;  and,  fis  stated,  it  did  not 


P  1  »      J 


550 


AMERICAN  CRIMINAL  REPORTS. 


take  place  until  the  venlict  was  agreed  uj)on,  signed,  and  ready 
for  delivery  to  the  court.  If  it  be  said  tliat  until  it  was  deliv- 
ered to  the  court  it  could  be  changed,  and  was,  therefore,  not 
technically  tiie  verdict  of  the  jury,  we  reply  that  it  was  not 
changed,  and  that  it  was  agreed  upon  and  prepared  before  any 
of  this  conversation.  If  it  be  said  that  it  is  evident  from  what 
occurred  that  at  least  some  of  the  jury  knew  that  she  was  a 
competent  witness,  and  most  likely  must  have  thought  of  that 
in  coming  to  their  conclusions,  we  reply  that  that  law  has  been 
so  long  in  the  statute  book  that  almost  every  intelligent  man 
in  the  state  is  aware  of  its  existence,  and  knows  that  both  a 
defendant  and  his  wife  nuiy  testil'v  in  his  behalf.  So  that  if 
ignorance  of  that  fact  is  one  of  the  qualilications  of  a  juror,  it 
will  be  exceedingly  ditKcult  to  secure  an  intelligent  jury.  Fur- 
ther, we  are  not  to  jjresume  that  they  disregarded  the  law  (jr 
reached  their  verdict  u])on  other  than  the  testimony  which  was 
before  them.  We  cannot  presume  that  it  was  based  u[)on  niat- 
tei-s  outside  the  case. 

XIII.  The  linal  matter  of  alleged  error  is  in  receiving  tiio 
verdict  at  the  time  it  was  received.  The  facts  are  these:  l>o- 
tween  7  and  8  o'clock  in  the  evening  the  case  was  committed 
to  the  jury,  and  they  retired  for  deliberation.  The  court  then 
adjourned  until  the  next  morning.  At  11  o'clock  that  niglit 
the  jury  announced  that  they  had  agreed  upon  their  verdict, 
and  were  called  into  the  coui't-room.  The  judge  was  j)i'es(nt, 
and  the  oHicers  of  the  court,  also  the  defendant  and  counsel  on 
both  sides.  The  verdict  was  received,  opened,  and  read,  and, 
at  the  instance  of  defendant's  counsel,  the  jury  were  polled. 
Thereui>on  the  jury  were  discharged.  After  this,  and  without 
any  previous  objection  or  suggestion,  defendant,  by  his  coun- 
sel, objected  to  the  verdict  on  the  ground  that  it  was  not 
received  in  ojjcn  court.  The  statute  (g  238,  Code  of  Criminal 
Procedure)  j)rovides  that  a  verdict  must  be  rendered  in  o])oii 
court.  Clearly,  there  was  a  technical  departure  from  this  rule. 
I>ut  section  275,  which  prescribes  the  grounds  for  a  new  trial, 
contains  nothing  which  wouhl  reach  a  rpiestion  like  this;  and 
section  203  provides  that  "'on  an  ap|)eal  the  court  must  give 
judgment  without  regard  to  technical  errors  or  defects,  <»r  to 
exceptions,  whicii  do  not  alfect  the  substantial  rights  of  the 
parties."    Under  these  two  provisions,  we  think,  the  error  is 


STATE  V.  McKINNEY. 


551 


■d,  and  ready 
it  was  dcliv- 
herefore,  not 
i,t  it  was  not 
;d  before  any 
nt  from  what 
at  she  Wits  a 
ought  of  that 
,  hiw  has  heoii 
telligeut  iiMiu 
i  that  both  a 
f.    So  that  if 
i  of  a  juror,  it 
lUt  jury.     l'"ui'- 
iled  the  hnv  or 
ony  which  was 
ised  upon  nuil- 

n  receiving  tlie 
ire  these:    J>o- 
A-as  conunittcil 
The  court  then 
ock  that  niglii 
1  their  verdict, 
re  was  pj'esent, 
;  and  counsel  oil 
,  and  read,  ami, 
iry  were  ])o11(m1. 
lis,  and  witliout 
nt,  by  his  coim- 
hat  it  was  not 
)de  of  ('riminal 
endered  in  open 
D  from  this  rule, 
for  a  new  trial, 
>n  like  this;  ami 
court  must  give 
or  defects,  oi-  to 
al  rights  of  tho 
link,  the  error  is 


e 


not  one  which  will  justify  a  reversal  of  the  judgment.  Every 
substantial  right  of.  the  defendant  was  secured.  lie  was  pres- 
ent, his  counsel  were  there,  the  verdict  was  opened  and  read  in 
his  hearing,  the  jury  were  polled  at  his  instance,  and  each  one 
declared  that  it  was  his  verdict.  There  was  nothing  but  a 
technical  departure  from  a  statutory  reciuirement. 

Again,  the  receiving  of  a  verdict  is  a  ministerial,  or,  at  least, 
only  a  «iua-sl  judicial  act.  It  may  be  received  on  Sunday, 
though  that  is  dus  non,  and  no  ju<licial  act  can  be  performed 
on  it.    /Stone  v.  Bird,  10  Kan.,  4S8. 

In  1  Bishop  on  Criminal  Procedure,  §  1001,  the  author 
observes  as  follows : 

"  The  receiving  of  a  verdict  is  by  some  judges  spoken  of  as  a 
judicial  act;  by  others  as  a  ministerial  act.  I'ractically,  it  is 
by  all,  or  nearly  all,  treated  as  ministerial,  or,  at  most,  as  only 
quasi  judicial.  It  nuiy  be  <lone  when  no  strictly  judicial  act 
can  bo,  as  on  Sunda}' .  Though  Sunday  is  dicn  no)i  jxridicuN, 
wherein  no  judicial  act  is  valid,  but  ministerial  acts  are.  A 
verdict  received  on  Sunday  is  good,  yet  not  a  judgment  on  the 
verdict;  and  on  Sunday  the  court  nuiy  find  the  fact  that  the 
jury  cannot  agree,  and  discharge  them.  Again,  though  after 
a  jury  has  gone  out  for  deliberation,  the  court  adjourns  to  a 
future  day  in  tho  term,  the  judge,  with  his  proper  oilicers,  may 
receive  their  verdict  in  the  open  court-room, —  a  proposition  to 
which,  while  sound  in  reason,  the  authorities  appear  not  to  be 
quite  uniform.'"  See,  also,  Railroad  Co.  v.  I  fund,  7  Kan.,  380; 
J)acix  V.  27io  Staff,  11  Ind.,  358;  and  other  authorities  cited 
by  Jiishop  in  his  notes  to  the  section  (juoted. 

We  shall  not  attempt  to  review  the  many  authorities  con- 
trary to  this  view  which  are  cited  by  counsel.  iMany  of  them 
rest  on  tho  fact  that  the  defendant  was  not  himself  present,  or, 
being  present,  lost  his  right  of  polling  the  jury  in  consequence 
of  the  absence  of  his  counsel.  Of  course,  such  authorities  are 
not  in  ])oint,  because  here  tho  defendant  was  present,  as  well  as 
his  counsel,  and  the  jury  were  in  fact  polled.  It  may  also  be 
(juestionable  whether  the  conduct  of  the  defendant  and  his 
counsel  was  not  a  waiver  of  any  objection,  and  this,  even  if 
the  error  were  of  a  more  serious  nature.  Ill  ale  r.  IJailei/,  10 
(xray,  531.     Though,  as  we  think,  the  error  was  not  in  itself 


nni-: 


AMERICAN  CRIMINAL  EEPORTS. 


I 


fatal  under  the  circumstances  of  the  case,  it  is  unnecessary  to 
rest  anything  upon  a  supposed  waiver  by  counsel. 

These  are  all  the  questions  in  the  case  which  we  think  do- 
serving  of  notice.  "We  have  examined  every  question  presented 
by  counsel,  carefully  read  the  voluminous  record,  and  are  of 
the  opinion  that  the  defendant  has  no  just  cause  of  complaint ; 
that  he  received  a  fair  and  impartial  trial;  and  that  the  verdict 
of  the  jury  is,  upon  the  testimony,  th©  right  one. 

The  judgment  will  be  affirmed. 

All  the  justices  concurring. 


II! 


.  ■.'■1.  ■:  ,-,   ,1":,';" 


ij 


JoNEB  V.  The  State. 

(64  Ga.,  697.) 

MuRDEU:  Principnl  and  accrsHor}/  —  Bill  of  exccptiona. 

1.  Tlie  conviction  of  one  chiirged  with  a  crime  ius  [jrincipal  in  the  second 

degree  is  contrary  to  law  wiiere  there  is  jio  evidence  of  the  guilt  of  X\\i 
principal  in  the  first  degree. 

2.  When  tlie  judge  of  the  suix'rior  court  lias  approved  the  brief  of  evi- 

dence and  signed  the  bill  of  except!  s.  he  has  exhausted  his  powers 
in  respect  to  the  testimony.  He  canii^ ;,  by  a  certificate  subsequently 
made,  alter  the  brief  of  evidence  as  apjiroved. 

Before  Judge  Crisp.     Lee  Superior  Court. 
Reported  in  the  decision. 

Fred.  11.  ^yed  and  Warren  <j&  Freeman,  for  plaintiff  in 
error. 

C.  B.  lludtion,  solicitor-general,  D.  11.  Pojje  and  llawhint^  tO 
Hawkins,  for  the  state. 

"Waunkk,  Chief  Justice.  The  defendant  was  indicted  for 
the  offense  of  murder,  and  charged  in  the  indictment  as  prin- 
cipal in  the  second  degree,  Jackson  Sellers  being  charged  in 
the  same  indictment  as  principal  in  tlie  first  degree.  The  de- 
fendant, Jones,  was  tried  sepai'atel3^,  and  was  found  guilty  as 
principal  in  the  second  degree.    A  motion  was  made  for  a  new 


JONES  r.  THE  STATE. 


553 


leccssaiy  to 

e  think  de- 
>n  presented 
and  are  of 
[  complaint ; 
tthe  verdict 


itions, 

)al  in  the  second 
'  the  guilt  of  til ' 

the  brief  of  ovi- 
usted  his  powers 
itc  subbequently 


r  plaintiff  in 
id  J/awIciuti  tt' 


5  indicted  for 
tiiicnt  as  prin- 
mx  diiirjijed  in 
rree.  The  de- 
)und  guilty  as 
lade  for  a  new 


trial  on  several  grounds,  which  was  overruled,  and  the  defend- 
ant excepted. 

One  of  the  grounds  of  the  motion  was  that  the  verdict  was 
contrary  to  law  and  contrary  to  the  evidence.  Upon  looking 
through  the  entire  evidence  in  the  record  as  approved  by  tiie 
court  on  the  2Gth  of  April,  1879,  it  does  not  appear  therefrom 
that  there  was  any  evidence  of  the  guilt  of  the  principal  in 
the  first  degree,  either  by  the  introduction  of  the  record  of  his 
conviction  in  evidence,  or  otherwise,  upon  the  trial  of  the  de- 
fendant as  principal  in  the  second  degree,  nor  does  it  appear 
from  the  evidence  in  the  record  that  the  principal  in  the  first 
degree  was  guilty  of  the  offense  as  charged  in  the  indictment. 
The  counsel  for  the  state,  discovering  that  defect  in  tlie  brief 
of  the  evidence  as  contained  in  the  record  here,  sought  to 
remedy  it  by  obtaining  from  Judge  Crisp  a  supplementary 
certificate,  dated  the  5th  of  January,  1880,  in  which  the  judge 
certifies  that  t)ie  bill  of  indictment  against  Sellers,  tlie  princi- 
pal in  the  first  degree,  with  the  verdict  of  guilty  tiiereon,  was 
in  evidence  before  the  jury  on  the  trial  of  tlie  defendant  Jones, 
the  principal  in  the  second  degree.  AVhen  the  judge  signed 
and  certified  the  bill  of  exceptions,  and  aj^proved  the  brief  of 
the  evidence,  he  had  exhausted  the  ])ower  conferred  on  him  by 
law  over  the  same,  and  could  not,  oiglit  or  nine  months  after- 
wards, when  the  case  was  pending  in  tliis  court,  supplement 
liis  original  certificate  in  the  manner  sought  to  bo  done  in  this 
case.  It  not  appearing  from  the  bill  of  exceptions,  nor  from 
the  brief  of  the  evidence  as  originally  signed,  certified  and 
approved  by  the  presiding  judge,  and  duly  transmitted  to  tliis 
court,  that  there  was  any  evidence  before  the  jury  proving  the 
guilt  of  the  ])rincipal  in  the  first  degree,  the  verdict  against  the 
l)rincipal  in  the  second  degree  was  contrary  to  law. 

Let  the  judgment  of  the  court  below  be  reversed. 

Note. —  When  a  bill  of  exceptions  in  signed  and  sealed  by  the  judge  and 
made  part  of  the  record,  both  parties  are  bound  thereby,  and  neither  party 
can  be  affecte(  by  any  action  of  the  judge  done  in  regard  thereto  after  the 
expiration  of  the  term.  In  The  W.,  St.  L.  A-  P.  li'i/  Co.  v.  The  People,  106 
III.,  652,  ;l  is  said :  "  It  has  long  been  the  settled  practice  of  this  court  that 
a  bill  of  exceptions  should  be  reduced  to  writing,  and  signed  during  the 
term  at  which  the  motion  excepted  to  is  made  and  decided,  except  in  cases 
where  the  counsel  consent,  or  the  judge,  by  an  entry  on  the  record,  directs, 
tliat  it  may  be  prepaied  in  vacation,  and  signed  nunc  pro  tunc;  and  that  in 


55i 


AMERICAN  CRIMINAL  REPORTS. 


•J  - 


all  cases,  it  should  appear  on  its  face  to  have  been  taken  and  signed  at  the 
trial."  In  Wallahan  v.  The  People,  40  111.,  103,  it  is  said  by  the  court :  "  An 
amendment  of  a  bill  of  exceptions,  incorporating  evidence  alleged  to  have 
been  omitted  from  the  original  bill  of  exceptions,  should  not  be  allowed  at 
a  term  subsequent  to  that  at  which  the  trial  was  had,  unless  there  is  some- 
thing in  the  court  below  to  amend  by. 

"  Had  the  party  objecting  to  this  amendment  shown  to  us,  by  bill  of  ex- 
cejjtions,  that  there  was  nothing  in  the  court  below,  or  no  sufficient  means 
of  information,  by  which  the  amendment  could  properly  be  made,  we  should 
regard  this  motion  very  differently.  But  as  there  is  nothing  before  us 
showing  such  a  state  of  case,  the  presumption  must  be  indulged  that  the 
court  below  did  not  act  without  sufficient  memoranda  upon  his  docket  or 
on  file  in  the  cause  of  what  the  testimony  was,  and  by  which  the  amend- 
ment might  be  made." 

In  Burnt  v.  Wayne,  13  111.,  664,  a  motion  was  made  to  strike  the  bill  of 
exceptions  from  the  record.  In  this  case  it  appears  that  the  cause  was  finally 
disposed  of  at  the  Sei)toniber  term,  1851,  of  the  circuit  court  of  JlcIIouy 
county,  and  on  the  2d  of  June,  1852,  a  bill  of  exceptioui  was  filed,  purport- 
ing to  have  been  signed  in  ojien  court,  at  the  May  term,  1852,  of  the  Kane 
circuit  court.  Sustaining  the  motion,  the  court  says:  "  It  has  always  been 
deemed  sufficient,  if  the  bill  of  exceptions  was  made  and  signed  during  the 
term  at  which  the  cause  was  tried,  and  this  has  been  deemed  re<iuisite, 
'  except  in  cases  where  cotinsel  consent,  or  the  judge,  by  an  entry  on  the 
record,  directs,  that  it  may  be  prepared  in  vacation,  and  signed  iiinic  pro 
tunc,  and  in  all  cases  it  should  ap])ear  on  its  face  to  have  been  taken  and 
signed  at  the  trial.'    EvanH  v.  Fisher,  5  Gilm.,  453. 

"  Two  terms  of  the  McHenry  circuit  court  intervened  after  the  trial  of 
this  cause,  before  the  bill  of  exceptions  was  signed,  and  no  reason  for  this 
delay  appears  upon  the  face  of  the  record. 

*'  To  allow  a  bill  of  exceptions,  embodying  the  evidence,  to  be  made  up 
on  the  ex  parte  application  of  one  of  the  parties  after  so  long  a  delay  and 
after  the  counsel  for  the  opposite  party,  as  in  this  instance,  have  removed 
from  the  state,  would  be  a  most  dangerous  practice,  and  out!  not  to  be  toler- 
ated except  under  very  extraordinary  circumstances.  Affidavits  have  been 
filed,  showing  that  thi're  was  an  af  eement  between  the  counsel  that  the 
bill  of  exceptions  might  be  subsequently  settled,  and  an  attemj)t  is  made  to 
bring  this  case  within  the  decision  in  the  case  of  Evans  v.  Fisher,  The 
court  went  to  the  very  limit  of  the  law  in  refusing  to  exclude  the  bill  of 
exceptions  in  that  case.     Now,  we  are  asked  to  go  a  step  fiuther." 

It  is  a  settled  principle  of  the  common  law  that  a  court  has  no  power  to 
amend  a  record  in  any  particular,  when  the  proceedings  are  no  longer  id 
fieri  and  the  term  has  passed  in  which  the  record  was  made.  Amendments 
were  iwrmissible  during  the  t(>rm  in  which  any  judicial  act  was  done  and 
while  the  proceedings  were  in  fieri,  because  by  a  legal  fiction  their  record 
was  supjwsed  to  remain  in  the  breast  of  the  judges  of  the  court  —  the  whole 
term  being  considered  as  one  day,  and  therefore  the  roll  was  alterable  at 
any  time  during  the  term.  At  the  expiration  of  the  term,  the  roll  was  tlie 
record,  and  no  amendment  could  be  made,  whether  clerical  or  otherwise,  at 


JONES  V.  THE  STATE. 


f/  fc-  *^ 


signed  at  the 
le court:  "An 
lleged  to  have 
bo  allowed  at 
there  is  some- 


by  bill  of  ex- 
fficient  meana 
[ide,  we  should 
ling  before  us 
ulged  that  the 
1  his  docket  or 
;h  the  amcnd- 

rike  the  bill  of 
use  was  finally 
it  of  Jkllomy 
i  filed,  purport- 
i3,  of  the  Kane 
as  always  been 
(lied  during  the 
L'lued  reciuisitc, 
n  entry  on  the 
gned  innw  pro 
been  taken  ami 

fter  the  trial  of 
reason  for  this 

,  to  be  made  up 
ong  a  delay  and 
>,  have  removed 
■  not  to  be  toler- 
lavits  have  been 
counsel  that  the 
empt  is  made  to 
V.  Fisher.  The 
Inde  the  bill  of 
rther." 

las  no  power  to 
ire  no  longer  in 
I.  Amendments 
ct  was  done  and 
ti(m  their  record 
mrt  —  the  whole 
was  alterable  at 
the  roll  was  the 
or  otherwise,  at 


a  subsequent  term.    Co.  Litt.,  260 ;  3  Black.  Com.,  ch.  25,  sec.  4.    To  relieve 
against  the  rigor  of  this  rule  a  statute  was  passed  in  the  reign  of  Edward 
III.,  enabling  the  court  to  correct  process,  by  the  clerk's  mistake  in  writing 
one  syllable  or  letter  too  much  or  two  little.    This  statute  was  construed  by 
the  courts  to  relate  to  proceedings  had  before  jeilgment,  and  by  9th  Ed- 
ward v.,  St.  1,  ch.  4,  the  judges  were  enabled  to  make  such  amendments  as 
well  after  judgment  as  before.    These  statutes  confined  the  amendments  sim- 
ply to  a  syllable  or  letter  in  the  process,  caused  by  the  misprision  of  the  clerk. 
By  the  8th  Henry  VI.,  ch.  12,  it  was  provided  that  the  king's  judges  of 
the  courts,  etc.,  "shall  have  power  to  examine  such  records,  processes, 
words,  pleas,  warrants  of  attorney,  writs,  panels  or  returns  by  them  or  their 
clerks,  ami  to  reform  and   amend   (in  aflirmance  of  the  judgments  of 
such  records  and  processes)  all  that  which  to  them,  in  their  discretion, 
seemeth  to  be  misprision  of  the  clerks  therein,  except  the  appeals,  indict- 
ments of  treason,  and  of  felonies  and  outlawries,  so  that  by  such  misprision- 
ment  of  the  clerks  no  judgment  shall  bt?  reversed  or  annulled.    And  if  any 
record,  ]n-ocess,  writ,  warrant  of  attorney,  return  or  panel  be  certified  de- 
fective, otherwise  than  according  to  the  writing,  which  thereof  remainetli 
in  the  treasury,  courts  or  places  from  thence  they  are  certified,  the  parties, 
in  aflirmance  of  such  judgment  of  records  and  process,  siiall  have  advan- 
tage to  illegethat  the  same  writing  is  variant  from  the  said  certificate;  and 
that  fountl  and  certified,  the  same  variance  shall  be  by  the  same  judges  re- 
formed and  nmended,  according  to  the  first  writing."    It  will  be  observed 
that,  by  these  statutes,  the  judges  have  power  to  examine  the  records, 
processes,  etc.,  and  to  reform  and  amend  all  that  which  to  them,  in  their  dis- 
cretion, seemeth  miaj)risionment  of  the  clerks  therein.    By  comparing  the 
statutes  of  the  several  states  it  will  be  observed  that  the  provisions  of  these 
statutes  liave,  in  very  few  instances,  l)een  enlarged  by  the  law-making  power. 
The  statute  of  amendments  and  jeofails  of  Illinois,  for  example,  is  confined 
to  civil  cases.    The  statute  itself,  section  11,  provides:  "  No  part  of  this  act 
sliall  extend  to  any  indictment  or  presentment  for  any  criminal  matter  or 
process  upon  the  same,  or  any  information  upon  any  popular  or  penal  stat- 
ute, or  to  any  plea  in  abatement."    The  meaning  of  this  statute  was  very 
thoroughly  reviewed  in  2'he  People  ex  rel.  v.  Whitson,  74  III.,  20.    In  this 
case  the  state's  attorney  at  the  March  term,  1874,  filed  an  information  against 
one  Manyx,  for  alleged  violations  of  "an  act  to  provide  against  the  evils  re- 
sulting from  the  sale  of  intoxicating  licpiors,"  etc.,  tli.e  information  contain- 
ing more  than  one  hundred  counts.    The  case  was  tried  upon  a  plea  of  not 
guilty  and  a  verdict  returned  of  guilty,  as  charged  in  the  complaint,  upon 
forty  counts.    At  the  same  term  the  court  sentenced  the  prisoner  to  ten 
days'  injprisonment  upon  each  count.    After  the  prisoner  had  been  confined 
for  thirty  days  in  the  county  jail,  he  was  discharged  upon  a  writ  of  habeas 
corpus,  issued  upon  his  petition,  by  Chief  Justice  Walker,  at  chambers,  on 
the  ground  that,  by  the  terms  of  sentence  entered  of  record,  the  prisoner 
had  undergone  the  punishment  to  which  he  was  sentenced,  all  of  the  terms 
having  commenced  and  ended  simultaneously. 

After  the  prisoner  was  discharged  upon  habeas  corjuis,  and  at  the  August 
term,  1874,  of  the  county  court  (at  the  March  term  whereof  he  had  been  con- 
victed and  sentenced,  as  above  stated),  said  court,  upon  the  petition  of  the 


550 


AMERICAN  CRIMINAL  REPORTS, 


t^     ' 


,   I 


¥' 


ii 


state's  attornpy,  and  ten  days'  notice  to  the  prisoner,  entered  an  order 
amendinp^  tlie  judgment  of  the  March  term,  and  directing  tlie  same  to  be 
entered  nunc  pro  tunc,  to  the  effect  that  defendant,  Michael  Manyx,  be  im- 
prisoned in  the  county  jail  for  tiie  term  of  ten  days,  and  fined  in  tlie  sum 
of  i|20,  on  each  of  the  forty  offenses  or  counts,  of  which  tlie  jury  in  their 
verdict  found  him  guilty.  The  term  of  imprisonment  on  each  subsecpient 
count  after  the  first  to  begin  on  the  termination  of  the  term  of  imprison- 
ment on  the  one  next  preceding,  and  that  he  be  imprisoned  until  such  tine 
and  costs  of  prosecution  herein  are  paid.  And  therefore  it  is  considered  and 
ordered  by  the  court  that  the  people  of  the  state  of  Illinois  recover  of  tlie 
said  defendant,  Michael  Manyx,  the  sum  of  $20  fine  for  each  of  the  several 
forty  counts  of  the  information  of  which  the  jury  found  him  guilty,  l^eing 
in  the  aggregate  the  sum  of  f800,  and  also  their  costs  herein,  and  may  have 
execution  therefor. 

Upon  a  certified  copy  of  this  last  mentioned  order  of  judgment  ^lanyx 
was  re-arrested  by  the  sheriff,  and  committed  to  the  county  jail  of  Schuyler 
county,  and  which  the  sheriff,  in  his  return  to  the  writ  of  hahras  corjms 
issued  by  the  supreme  court,  set  up  as  the  cause  of  the  prisoner's  capture 
and  detention. 

Upon  the  foi'egoing  statement  of  facts  tlie  court  says:  "  Amendments  in 
criminal  cases  are  entirely  excepted  out  of  the  operation  of  tiie  stiitute  of 
amendments  and  jeofails,  and  the  question  of  the  power  of  tlio  court  to 
alter  its  judgments  at  a  subsequent  term  is  therefore  to  be  tletiTinined  by  the 
common  law." 

After  reviewing  the  cases  as  to  the  jurisdiction  of  the  court  to  amend  or 
alter  the  record  after  the  exi»iration  of  the  term  at  which  the  judgitieiit  wiis 
rendered,  the  court,  in  conclusion,  says;  "When  tlit^  term  elapsed,  that 
entry  became  conclusive  evidence  of  what  the  judgment  was,  and  to  say 
that  the  supposed  judgment,  entered  at  the  subsequent  term,  which  com- 
prised forty  consecutive  sentences,  is  not  an  alteration  of  that  former  jikIk- 
ment,  is  sheer  nonsense.  But  the  court  had  no  power  or  juiisilictioii  at  a 
subseciuent  term  to  make  it.  Hence  it  is  void,  and  the  prisoner  must  be  dis- 
charged from  imprisonment  under  it." 

With  reference  to  the  power  of  courts  under  the  acts  of  parliament  above 
riuoted,  in  civil  cases,  it  has  been  uniformly  held  by  the  courts  of  England 
and  America  that  such  amendment  of  the  record  cannot  be  made  unless 
there  be  something  to  amend  by. 

The  meaning  of  the  term  •'  something  to  amend  by  "  has  received  but  one 
construction.  It  is  found  in  Bacon's  Abridgment,  title  Amendment  (F.); 
Wynne  v.  Thomas,  Willes'  R.,  563  (this  is  a  very  elaborate  and  well  consid- 
ered case);  King  v.  King,  7  Mod.,  250;  Ray  v.  Lister,  Andrews,  351.  And 
in  Alhers  v.  Whitney  et  at.,  1  Story,  310,  Mr.  Justice  Story  states  the  ynw- 
tice  in  the  English  courts,  under  the  statutes  of  amendments,  thus:  '•  Jiid;;:- 
ments  and  records  are  there  never  allowed  to  he  amended,  except,  in  the 
first  place,  where  the  case  is  within  the  reach  of  some  statute,  or,  in  the 
next  place,  when  there  is  something  to  amend  by ;  that  is,  where  there  is 
some  memorial  paper  or  other  minute  of  the  transactions  in  the  case,  from 
which  what  actually  took  jilace  in  the  prior  proceedings  can  be  clearly  ascer- 
tained and  known."    In  every  case  cited  in  the  text-books  where  amend- 


^P""^ 


JONES  r.  THE  STATE. 


r.57 


sd  an  order 
c  same  to  be 
anyx,  be  itn- 
[l  in  tbe  8Uin 
jury  in  tbeir 
h  Kubseciueiit 

of  iinprison- 
mtil  aucb  fine 
onsidereU  and 
■ecover  of  tlie 
of  the  several 

guilty,  l^eing 
md  may  have 

gnient  Manyx 

lil  of  Sehuyler 

hahcris  corpiin 

soner's  capture 

Amendments  in 
'  tbe  statute  of 
i)f  llio  court  to 
termined  by  tbe 

irt  to  amend  «ir 
judgment  was 
(■lai)se(i,  that 
as,  and  to  say 
•m,  wbieb  eoiii- 
I'ormer  judg- 
uri;,dietion  at  a 
uer  must  bed  is- 

idiament  above 
urts  of  England 
be  made  unless 

eoeived  but  one 
inendment  (F.); 
ind  well  consid- 
Irews,  351.     And 
states  tlH>  prac- 
s,  tbus:  'Jndg- 
1,  except,  in  tins 
itute,  or,  in  the 
where  there  is 
1  tbe  case,  from 
be  clearly  ascer- 
8  where  amend- 


ments have  been  permitted,  under  the  English  statutes,  a  subse(iuent  paper, 
pleading,  order  or  proceeding  in  the  progress  of  the  case  has  been  con-ected 
l>y  something  in  the  records  or  proceedings  of  prior,  or  at  least  equal,  date 
with  the  matter  in  which  the  error  is  sought  to  be  amended.  In  Hamil- 
ton V,  Bvrvh,  28  Ind.,  233,  the  bill  of  exceptions  purjwrted  to  contain  "all 
the  evidence  given  upon  the  trial,"  but  did  not  show  that  any  evidence  was 
introduced  to  prove  that  any  levy  upon  or  sale  of  the  property  had  ever  l)een 
made  by  the  sheriff,  or  any  deed  executed  to  the  appellants  —  the  failure  of 
which  priH)f  was  fatal  to  the  relief  in  the  case.  It  was  sought  to  avoid  the 
result  by  an  api)lication  to  the  court  below,  u^Kin  notice  to  the  apixdlants,  to 
have  the  bill  of  exceptions  amended,  and  then  by  certiorari  from  the  supreme 
court  to  bring  up  th(!  bill  of  exceptions  so  amended  and  made  to  contain 
such  proofs,  etc.  The  application  was  granted  in  the  circuit  court  upon 
parol  evidence  alone,  and  over  the  objections  of  the  appellants.  The  su- 
preme court,  reversing  the  case,  after  reviewing  the  authorities,  said:  "  We 
IxOieve  the  p  jwer  does  not,  in  any  event,  extend  beyond  this  limit  (beyond 
the  term).  We  cannot,  for  the  reason  stated,  regard  the  amendment  to  the 
bill  of  exceptions,  and  must  therefore  reverse  the  case  for  a  failure  of  proof 
to  sustain  the  finding  of  the  jury." 

In  The  State  i\  Netvcomb,  56  la.,  335,  discussing  the  power  of  the  trial 
court  to  settle  a  bill  of  exceptions  after  the  term  of  trial  and  after  the  time 
prescribed  in  the  order  of  the  court  within  which  to  file  tbe  bill  of  excep- 
tions, the  sui)reme  court  said :  "  It  cannot  surely  be  claimed  that  the  order 
may  Iw  disregarded  and  the  certificate  or  bill  of  exceptions  may  be  signed 
at  any  time.  Such  practice,  if  sanctioned  by  this  court,  would  lead  to  the 
greatest  uncertainty  a.s  to  the  substance  of  records,  and  to  serious  abuses ; 
.  .  .  but  if  we  sanction  a  bill  of  exceptions  settled  seven  months  after 
the  trial,  or  after  the  day  fixed  for  its  settlement,  what  shall  be  the  limit  of 
the  time  in  which  the  record  may  be  made  by  the  judge?  There  could  be 
none." 

A  bill  of  exceptions  signed  by  the  judge  cannot  subsequently  be  changed, 
uidess  made  before  adjournment  and  whde  the  matter  is  in  fieri.  Posey  v. 
Beale,  69  Ala.,  32.  It  cannot  be  signed  after  the  term  without  a  written 
agreement  to  that  effect.  In  Ex  parte  Maijficld,  63  Ala.,  203,  it  is  held: 
"  There  being  no  valid  agreement  that  a  bill  of  exceptions  might  be  signed 
after  the  adjournment  of  the  court,  we  would  not  be  at  liberty  to  establish 
the  bill  tendered  even  if  it  had  set  forth  the  iwints  reserved,  and  the  neces- 
sary statement  of  facts  to  show  their  pertinency.  As  to  the  bill  approved 
by  the  presiding  judge,  and  shown  to  be  a  true  statement  of  the  rulings  ex- 
cepted to,  the  case  is  not  brought  within  any  provision  of  the  statute,  and 
we  have  no  authority  to  establish  it.  It  is  beyond  tbe  power  of  the  circuit 
judge  to  sign  it  in  the  absence  of  the  solicitor's  agreement  that  it  may  be 
signed  in  vacation."  The  court  has  no  power  to  amend  the  bill  by  incorpo- 
rating therein  "  and  this  was  all  the  evidence  introduced  in  the  cause." 
Seig  V.  Long  et  at.,  73  Ind.,  18.  When  the  biU  of  exceptions  is  signed  by 
the  judge  and  filed  in  the  cause,  it  becomes  a  part  of  the  record  and  is  not 
subject  to  amendment.  If  wrong  when  made  a  part  of  the  record  it  must 
remain  so  (unless  there  is  something  in  the  record  to  amend  by),  for  no 
authority  exists  for  its  correction,  either  by  the  supreme  court  or  the  court 


»?S:v 


M 

ll'i' 

^ 

W'' 

n 

I'i; 

IM 

i  ' 

558 


AMERICAN  CRIMINAL  REPORTS, 


wlio  signed  it.  Bridges  v.  Kendall,  58  Miss.,  828,  citing  Bank  v.  Kinnetf,  ,'5 
Ala.,  9;  Kitchen  r.  Moyc,  17  id.,  894;  Peo2)le  v.  Romero,  18  Cal.,  89;  Heard 
V.  Heard,  8  Ga.,  380, 

Any  alteration  in  the  bill  of  exceptions  after  it  is  signed,  certified  and  filed 
with  the  clerk  must  be  taken  and  considered  as  done  in  his  individual  and 
not  in  his  official  character.  Georgia  v.  Povern,  14  Oa.,  .S88;  Hnmiltnn  v. 
Bureh,  28  Ind.,  233;  Givem  v.  Bradley,  3  Bibb,  103.  In  Shepard  v.  Hull, 
42  Maine,  577,  Tenney,  C.  J.,  says:  "A  party  aggrievetl  by  any  ruling,  order 
or  direction  of  the  court  may  allege  his  exceptions  thereto;  and,  ujKm  their 
being  reduced  t<»  form  aiul  seasonably  presented  to  the  presiding  judge,  it  is 
his  duty,  if  they  are  found  conformable  to  the  truth,  to  allow  and  sign 
them  and  order  them  to  be  placed  on  the  files  of  the  court.  If  he  (h-enj 
them  not  conformable  to  the  truth,  he  may  and  should  withhold  his  signa- 
ture, unless  the  excepting  party  consent  to  alter  them  according  to  the  facts. 
If  he  consent  to  the  alterations  suggested  by  the  i)residing  judge  or  op|K)sing 
counsel,  he  is  considered  as  having  adopted  the  alterations  and  made  them  a 
part  of  his  bill.  He  may  refuse  to  alter  his  bill,  and  if  the  judge  is  satisfied 
that  it  is  not  conformable  to  the  truth,  he  will  refuse  to  allow  and  sign  it. 

"  But  after  the  exceptions  have  been  allowed,  signed  and  placed  on  file, 
the  judge  has  no  right  to  alter  them  or  to  direct  alterations.  If,  before  the 
adjournment  oi  court  without  day,  material  errors  are  brought  to  his  atten- 
tion, he  may,  on  notice  to  the  excepting  party,  require  him  to  amend  ac- 
cording to  the  truth ;  and  in  case  he  refuse,  the  judge  may  withdraw  his 
signature  from  the  bill. 

"  There  are,  in  fact,  throe  parties  to  a  bill  of  excejitions—  the  i)arties  liti- 
gant and  the  presiding  juilge.  It  is  not  competent  for  the  parties  to  the 
suit,  or  their  counsel,  by  agreement,  to  make  material  alterations  in  a  bill  of 
exceptions,  after  it  has  been  allowed  and  signed  by  the  presiiling  judge, 
without  consulting  him  and  obtaining  his  assent  thereto." 

In  Gaucher  v,  Putteraov,  94  111.,  520,  applicati<m  was  made  at  the  Sep- 
tember term,  1870,  to  amend  the  record  of  a  judgment  rendered  at  the  Sep- 
tember term,  1875.  Mr.  Justice  Craig,  denying  the  power  of  the  court  to 
make  the  amendment,  said :  "  The  judgment  was  rendered  at  the  Septem- 
ber term,  1875,  of  the  circuit  court,  and  after  that  term  expired,  as  a  gj'neral 
rule,  the  court  had  no  power  over  the  judgment,  except  to  amend  it  in 
matters  of  form  or  to  correct  clerical  errors.  States  Savings  Institution  r. 
Nelson,  49  111.,  171 ;  Becker  v.  Snuter,  89  id.,  590." 

"  An  affidavit  was  filed  in  support  of  the  motion  for  the  purpose  of  im- 
peaching the  record  of  the  judgment.  That  cannot  be  done.  After  the 
adjournment  of  a  term  at  which  a  judgment  is  rendered,  its  absolute  verity 
cannot  be  overcome  or  even  attacked  by  affidavit.  Humphreyville  v.  Culver 
ct  al.,  73  111.,  485.  During  the  term  at  which  a  judgment  or  decree  is  ren- 
dered, the  court  has  control  over  the  record,  and,  for  sufficient  cause  appear- 
ing, may  amend  its  judgments  and  decrees,  or  vacate  and  set  them  aside: 
but  when  the  term  is  ended,  the  judgment  entered  and  the  case  passes  off 
the  docket,  that  power  ceases  and  an  amendment  of  a  substantial  character 
cannot  be  made.  Cook  v.  Woo<l,  24  111.,  295;  Cairo  &  St.  Louis  Railroad 
Co.  V.  Holbrook,  72  id.,  419;  Church  v.  English,  81  id.,  442." 

"  It  is  a  matter  of  regret,"  says  the  learned  and  distinguished  judge  who 


THF,  QUEEN  V.  DUDLEY  AND  STEPHENS. 


559 


k  V.  Kimtpif,  5 
III.,  80;  Heard 

tifiod  and  filed 
individ\ml  and 
5;  llnmiUnn  v, 
epard  v.  Hull, 
\y  ruling,  order 
nn<l,  uinm  their 
linK  judge,  it  ia 
,ll(.\v  and  sign 
rt.     If  lie  d«'eni 
diold  his  signa- 
ing  to  the  faets. 
dge  or  opi)Osing 
ud  made  tlu-ni  a 
ndge  is  satisfied 
w  and  sign  it. 
,  placed  on  tile, 
.     If.  before  the 
ght  to  his  atten- 
ni  to  amend  ac- 
ay  withdraw  his 

-  th«'  i)arties  liti- 
ip  parties  to  the 
iitions  in  a  hill  of 
presiding  judge, 

lade  at  the  Sep- 
dered  at  the  Sep- 
of  the  court  to 
tl  at  the  Soptein- 
ired,  as  a  general 
)t  to  an«'n<l  it  in 
(js  Institution  v, 

e  purpose  of  im- 
done.  After  the 
its  absolute  verity 
ircyville  v.  Cidirr 
or  decree  is  ren- 
ient  cause  appear- 
id  set  them  aside; 
he  case  passes  ofE 
iBtantial  character 
If.  LoMts  Railroad 

3." 

uished  judge  who 


proparod  the  opinion  in  P.  M.  L.  Co.  d  al.  v.  The  Citji  of  Chicago,  50  III, 
804,  "that  wo  are  conii)clled  to  reverse  these  cases  for  such  a  defect.  But 
the  records  are  submitted  to  us  in  this  condition,  and  the  point  made.  "We 
must  therefore  reverse,  or  say  that  we  will  dispense  altogellit-r  with  a  re- 
(luirement  of  the  common  law,  as  old  as  the  law  itself.  So  long  as  justice 
is  administered  under  the  conunon  law,  we  must  adlierc  to  all  the  sul)stiin- 
tial  forms  of  that  system,  except  so  far  as  they  have  been  ahoiJHhed  by  the 
legislative  department  of  tlnj  state.  The  experience  and  wisdom  of  ages 
have  taught  that  these  forms  are  necessary  1  >  i>revcnt  legal  lu'oceediiigs 
from  degenerating  into  such  looseness  and  contusion  as  to  r^  mler  rights  ac- 
quired under  them  insecure,  and  the  salutary  maxim  tiiat  a  man  shall  not 
he  twice  vexed  for  one  and  the  same  cause,  difiicnlt,  if  not  wholly  hnpracti- 
cable  of  application." 


The  QrKEN  v.  Dudley  and  Stepiiexs. 

(14  Law  Reports,  Q.  B.  Div.,  273.) 

MUHDER  ON  THE  HIGH  SEAS :  The  necensity  of  prescrviiig  one's  oicn  life  does 

not  excuse  viurdcr. 

1.  A  man  who,  in  order  to  escape  death  from  luinger,  kills  another  for  the 

purjjose  of  eating  his  flesh,  is  guilty  of  murdm;  aUhougii  at  the  time 
of  the  act  he  is  in  such  circumstances  that  In  beiievts,  and  has  reatson- 
able  ground  for  believing,  that  it  affords  the  only  chance  of  preserving 
his  life. 

2.  At  the  trial  of  an  indictment  for  murder  it  appeared,  upon  a  special  ver- 

dict, that  the  prisoners  D.  and  S.,  seamen,  and  the  deceased,  a  boy 
between  seventeen  and  eighteen,  were  cast  away  n  a  storm  .Tithe 
high  seas,  and  compelled  to  put  into  an  open  lx)at;  that  the  boat  was 
drifting  on  the  ocean,  and  was  probably  more  than  one  thousand  miles 
from  land  ;  that  on  the  eighteenth  daj%  when  they  ht.d  been  seven  days 
without  food  and  five  without  water,  D.  projxjsed  to  .<.  that  lots  should 
be  cast  who  should  be  put  to  death  to  save  the  rest,  and  that  they  after- 
wards thought  it  would  be  better  to  kill  the  boy  that  their  lives  should 
be  saved;  that  on  the  twentieth  day  D.,  with  the  assent  of  S.,  killed 
the  boy,  and  both  D.  and  S.  fed  on  his  flesh  for  four  days;  that  at  the 
time  of  the  act  there  was  no  sail  in  sight,  nor  any  reasonable  prospect 
of  relief ;  that  under  these  circumstances  there  appeared  to  the  prison- 
ers every  probability  that  unless  they  then  or  very  soon  fed  upon  the 
boy,  or  one  of  themselves,  they  would  die  of  starvation.  Held  that, 
upon  these  facts,  there  was  no  proof  of  any  such  necessity  as  could 
justify  the  prisoners  in  killing  the  boy,  and  tliat  they  were  guilty  of 
murder. 

Indictment  for  the  murder  of  Eichard  Parker  on  the  high 
seas  within  the  jurisdiction  of  the  admiralty. 


rn 


li 


li 


ooO 


AJIERICAN  CRIMINAL  REPORTS. 


At  the  trial  before  Iluddleston,  B.,  at  the  Devon  and  Corn- 
wall winter  assizes,  November  7,  1884,  the  jury,  at  the  sugges- 
tion of  the  learned  judge,  found  the  facts  of  the  case  in  a 
special  verdict,  which  stated  "that  on  July  5,  1884,  the  pris- 
oners, Thomas  Dudley  and  Edward  Stephens,  with  one  Brooks, 
all  able-bodied  English  seamen,  and  tlie  deceased,  also  an  Eng- 
lish boy,  between  seventeen  and  eighteen  years  of  age,  tlie  crew 
of  an  English  yacht,  a  registered  English  vessel,  were  cast  away 
in  a  storm  on  the  high  seas  one  thousand  six  hundred  miles 
from  the  Cape  of  Good  Hope,  and  were  compelled  to  put  into 
an  open  boat  belonging  to  the  said  yacht.  That  in  this  boat 
they  had  no  su])ply  of  water  and  no  supply  of  food,  except  two 
one-pound  tins  of  turnips,  and  for  three  days  thoy  had  nothing 
else  to  subsist  upon.  That  on  the  fourth  day  the}'  caught  a 
small  turtle,  upon  which  they  subsisted  for  a  few  days,  and 
this  was  the  only  food  they  had  up  to  the  twentieth  day,  when 
the  act  now  in  question  was  committed.  That  on  the  twelfth 
day  the  remains  of  the  turtle  were  entirely  consumed,  and  foi- 
the  next  eight  days  they  had  nothing  to  eat.  That  they  had 
no  fresh  water,  except  such  rain  as  they  from  time  to  time 
caught  in  their  oilskin  capes.  That  the  boat  was  drifting  on 
the  ocean,  and  was  probably  more  than  one  thousand  miles 
away  from  land.  That  on  the  eighteenth  day,  when  thoy  had 
been  seven  days  without  food  and  five  without  water,  the  pris- 
oners spoke  to  Brooks  as  to  what  should  be  done  if  no  succor 
came,  and  suggested  that  some  one  should  be  sacrificed  to  save 
the  rest,  but  Brooks  dissented,  and  the  boy.  to  whom  they  were 
understood  to  refer,  was  not  consulted.  That  on  the  24th  of 
July,  the  day  before  the  act  now  in  question,  the  prisoner  Dud- 
ley proposed  to  Stephens  and  Brooks  that  lots  should  be  cast 
who  should  be  put  to  death  to  save  the  rest,  but  Brooks  refused 
to  consent,  and  it  was  not  put  to  the  boy,  and  in  point  of  fact 
there  was  no  drawing  of  lots.  That  on  that  <lay  the  prisoners 
spoke  of  their  having  families,  and  suggested  it  would  be  better 
to  kill  the  boy  that  their  lives  should  be  saved,  and  Dudley  pro- 
posed that  if  there  was  no  vessel  in  sight  by  the  morrow  morn- 
ing the  boy  should  be  killed.  That  next  day,  the  25th  of  July, 
no  vessel  appearing,  Dudley  told  Brooks  that  ho  had  better  go 
and  have  a  sleep,  and  made  signs  to  Stephens  and  Brooks  that 
the  boy  had  better  be  killed.    The  prisoner  Stephens  agreed 


tcKa 


THE  QUEEN  v.  DUDLEY  AND  STEPHENS. 


561 


and  Corn- 
the  sugges- 
3  case  in  a 
i4,  the  pris- 
one  Brooks, 
lIso  an  Eng- 
o-e,  the  crew 
re  cast  away 
mdred  milos 
1  to  put  into 

in  this  boat 
I,  except  two 
liad  nothing 
ley  caught  a 
nv  days,  and 
:th  day,  when 
n  the  twelfth 
imcd,  and  for 
rhat  they  had 

time  to  time 
as  drifting  on 
lousand  miles 
Axon  they  had 
i-atcr,  the  pris- 
\e  if  no  succor 

rificed  to  save 
unn  they  were 

n  the  24th  of 

prisoner  Dud- 
hould  be  cast 

brooks  refused 
point  of  fact 

<:  the  prisoners 

vould  be  better 

nd  Dudley  pro- 
morrow  morn- 

ic  2r)th  of  July, 
had  better  go 

,nd  Brooks  that 
ephens  agt<->od 


to  the  act,  but  Brooks  dissented  from  it.    That  the  boy  was 
then  lying  at  t]^^J  bottom  of  the  boat,  quite  helpless,  and  ex- 
tremely weakene('  by  famine  and  by  drinking  sea  water,  and 
U'J'iiblc  to  make  any  resistance,  nor  did  he  ever  assent  to  his 
being  killed.     Tlie  prisoner  Dudley  offered  a  prayer  asking 
forgiveness  for  them  all  if  either  of  them  should  be  tempted 
to  commit  a  rash  act,  and  that  their  souls  might  be  saved. 
That  Dudley,  with  the  assent  of  Stephens,  went  to  the  boy, 
and  telling  him  that  his  time  was  come,  put  a  knife  into  his 
throat  and  killed  him  then  and  there.     That  the  three  men  fed 
upon  the  body  and  l)lood  of  the  boy  for  four  days.     That  on 
the  fourth  day  after  the  act  had  been  committed  tlie  boat  was 
j»cked  up  by  a  passing  vessel,  aiul  the  ])risonors  were  rescued, 
still  alive,  but  in  the  lowest  state  of  prostration.    That  they 
were  carried  to  tlie  port  of  Falmouth,  and  committed  for  trial 
at  Exeter.     That  if  the  men  had  not  fed  upon  the  body  of  tiie 
l)oy  tliey  wouhl  probably  not  have  survived  to  be  so  i)icked  up 
and  rescued,  but  would  within  the  four  days  have  died  of  fam- 
ine.    That  the  boy,  being  in  a  inuch  weaker  condition,  Avas 
likely  to  have  died  before  them.     That  at  the  time  of  tlie  act 
in  question  there  was  no  sail  in  sight,  nor  any  reasonable  pros- 
pect of  reUef.     That  under  these  circumstances  there  appeared 
to  tiie  prisoners  every  probability  that  unless  they  then  fed  or 
very  soon  fed  upon  the  boy  or  one  of  themselves  they  would 
die  of  starvation.    That  there  was  no  appreciable  chance  of 
saving  life  except  by  killing  some  one  for  the  others  to  eat. 
That  assumiu'^  anv  necessitv  to  kill  anvhodv,  there  was  no 
ffreater  necessity  for  killinu:  the  l)ov  than  any  of  the  other 
three  men."    ]>ut  whether,  upon  the  whole  matter  by  the  jurors 
found,  the  killing  of  Richard  Pai-kor  by  Dudley  and  Stephens 
1)0  felony  and  murder,  the  jurors  are  ignorant,  and  pray  the 
advice  of  the  court  thereupon,  and  if  ujion  the  whole  matter 
the  court  shall  be  of  opinion  that  the  killing  of  Richard  Parker 
he  felony  and  murder,  then  the  jurors  say  that  Dudley  and 
Stephens  were  each  guilty  of  felony  and  murder,  as  alleged  in 
the  indictment." 

Tiie  learned  judge  then  adjourned  the  assizes  until  the  2r)tli 
of  November  at  the  royal  courts  of  justice.    On  the  application 
of  the  crown  they  were  again  adjourned  to  the  ith  of  De- 
VoL.  V— 36 


AMERICAN  CRIMINAL  REPORTS. 


m 


ceraber,  and  tlic  case  ordered  to  be  argutd  before  a  court  con- 
sisting of  five  judges. 

LoRP  CoLKRiDOE,  C.  J.  Tlio  two  ])risonors.  Thomas  Dudley 
and  Edwin  Stephens,  were  indicted  for  tiie  murder  of  Kicluird 
Parker  on  the  high  seas  on  the  25tli  of  July  in  the  ])resent 
year.  They  were  tried  before  my  brother  Iluddleston  at 
Exeter  on  the  6th  of  November,  and,  under  the  direction  of 
my  learned  brother,  the  jury  returned  a  special  verdict,  the 
legal  effect  of  which  has  been  argued  before  us,  and  on  which 
Ave  are  now  to  })ronounce  judgment. 

Tlie  special  verdict,  as,  after  certain  ol)jections  by  Mr.  Col- 
lins to  which  the  attorney -general  yi(!l(led,  it  is  linally  settled 
before  us,  is  as  follows:  (His  l.onlship  read  the  special  ver- 
dict as  above  set  out.)  From  these  facts,  stated  with  the  cold 
precision  of  a  special  verdict,  it  a])pears  sufficiently  that  the 
prisoners  were  sul»ject  to  a  terrible  temj)tation,  to  sufferings 
which  might  break  down  the  bodily  power  of  the  strongest 
man,  and  try  the  conscience  of  the  l)est.  Other  details  yet 
more  harrowing,  facts  still  more  loathsome  and  a])palling,  were 
])resented  to  the  jury,  aiul  are  to  be  found  recorded  in  my 
learned  brother's  notes.  But  nevertheless  this  is  clear,  that 
the  prisoners  put  to  death  a  weak  and  unoffending  boy  upon 
the  chance  of  preserving  their  own  lives  by  feeding  ujjon  liis 
flesh  and  blood  after  he  was  killed,  and  with  the  certainty  of 
depriving  him  of  any  possible  chance  of  survival.  The  verdict 
finds  in  tei'ms  that  "  if  the  men  had  not  fed  upon  the  body  of 
the  boy  they  wowVX prnhnhly  not  have  survived,"  ami  that  "the 
boy  being  in  a  much  weaker  condition  was  lih'hj  to  have  died 
before  them."  They  might  possibly  have  been  picked  up  iie.xt 
day  by  a  passing  ship;  they  might  possibly  not  have  Ijcen 
])icked  up  at  all.  In  either  case  it  is  obvious  that  the  killing 
of  the  boy  would  have  been  an  unnecessary  and  profitless  act. 
It  is  found  by  the  verdict  that  the  boy  was  incapable  of  re- 
sistance, and,  in  fact,  made  none;  and  it  is  not  even  suggested 
that  his  death  was  «lue  t(j  any  violence  on  his  part  attempteil 
against,  or  even  so  much  as  feared  by,  those  who  killed  him. 
Under  these  circumstances  the  jury  say  that  they  are  ignoi-ant 
whether  those  who  killed  him  were  guilty  of  murder,  and  have 


THE  QUEEN  r.  DUDLEY  AND  STEPHENS. 


563 


a  court  con- 


)mas  Dudley 
ir  of  Kicluml 
n  the  present 
AuMleston  at 
e  direction  of 
I  verdict,  the 
and  on  wliieh 

IS  by  Mr.  Col- 
linally  settled 
:he  special  ver- 
[  with  the  cold 
icntly  that  tlio 
n,  to  sutTerings 
E  the  stronf,n,"st 
her  details  yet 
a])i)aHin»i-,  were 
recorded  in  my 
is  is  clear,  that 
iidinf?  hoy  ui">n 
eedin;,^  ui)on  his 
the  certainty  of 
a\.    The  verdict 
ion  the  hody  of 
,"  and  that  -  the 
{•,!], I  to  have  died 
n  picked  up  next 
not  have  heen 
s  that  the  killing 
,nd  protitless  act. 
incapable  of  ro- 
,t  even  sujJif-ested 
part  attempted 
,  who  killeil  him. 
they  are  ignorant 
murder,  and  have 


referred  it  to  this  coui't  to  detenninc  wliat  is  the  legal  conse- 
quence wiiich  follows  fi-om  the  facts  which  they  have  found. 

Certain  objections  on  points  of  form  were  taken  by  Mr. 
Collins  before  he  came  to  argue  the  main  point  in  the  case. 
First  it  was  contended  that  the  conclusion  of  the  special 
verdict  as  entered  on  the  record,  to  the  elfect  that  the  jury 
lind  their  verdict  in  accoi-dance,  eithei*  wav,  with  the  judir- 
ment  of  the  court,  was  not  i)Ut  to  them  by  my  learned  brother, 
and  that  its  forming  part  of  the  verdict  on  the  record  inval- 
idated the  whole  verdict.  Hut  the  answer  is  twofold:  (1)  that 
it  is  really  what  the  jury  meant,  and  that  it  is  but  the  clothing 
in  legal  phraseology  of  that  which  is  already  contained  by 
necessary  implication  in  their  un(|uestioned  linding;  and  C-l) 
that  it  is  a  matter  of  the  [>urest  form,  and  that  it  ap|)ears  from 
the  precedents  with  which  we  have  heen  furnished  from  the 
crown  otHce,  that  this  has  been  the  form  of  special  verdicts  in 
crown  cases  for  ui>wards  of  a  century  at  least. 

Next  it  was  objected  that  the  record  should  have  been 
brought  into  this  court  i»y  <'i  rtlardri^  and  that  in  this  case  no 
writ  of  cei'tiorai'i  had  issued.  The  taitt  is  so,  l)ut  the  ohjeetion 
is  groundless.  J'efore  the  passing  of  the  judicature  act,  1«7?> 
(;3(i  and  37  Vict.,  ch.  0»'»),  as  the  courts  of  oyer  and  terminer 
and  gaol  delivery  were  not  parts  of  the  court  of  queens  bench, 
it  was  necessary  that  the  (pieen's  bench  should  issue  its  writ  to 
brintr  hefore  it  a  record  not  of  its  own,  l)ut  of  another  court. 
IJut  l»y  the  sixteenth  section  of  the  judicature  act,  1S73,  the 
courts  of  oyer  and  terminer  and  gaol  delivery  a. 3  now  made 
part  of  the  high  court,  and  their  jurisdiction  is  vested  in  it. 
An  order  of  the  court  has  been  ina<le  to  bring  the  record  from 
one  part  of  the  court  into  this  chamher,  which  i'^,  another  part 
of  the  same  court;  the  rec<»rd  is  here  in  (»hedience  to  that 
order,  and  we  are  all  of  opinion  that  the  objection  fails. 

It  was  further  objected  that,  according  to  the  decision  of  the 
majority  of  the  judges  in  the  Francoiua  Cane,  2  Ex.  D.,  Go, 
there  was  no  jurisdiction  in  the  court  at  Exeter  to  try  these 
prisoners.  But  (1)  in  that  case  the  prisoner  was  a  German, 
who  had  committed  the  alleged  offense  as  captain  of  a  Ger- 
num  ship;  these  prisoners  were  English  seamen,  the  crew  of 
an  English  yacht,  cast  away  in  a  storm  on  the  high  seas,  and 
escaping  from  her  in  an  open  boat;  (2;  the  opinion  of  the  mi- 


664 


AMERICAN  CRIMINAL  REPORTS, 


m 


■,;j 

'   ''  "u 


:^4 


'   k 

i 


tuv 


I, 


nority  in  the  Franconia  Case,  2  Ex.  D.,  03,  has  been  since  not 
only  enacted  but  declared  by  parliament  to  have  boon  always 
the  law;  and  (3)  17  and  18  Vict., ch.  lOi,  sec.  207,  is  absolutely 
fatal  to  this  objection.  By  that  section  it  is  enacted  as  fol- 
lows: "All  offenses  against  property  or  person  committed  in 
or  at  any  place,  either  ashore  or  afloat,  out  of  her  majesty's 
dominions  by  any  master,  seaman  or  apprentice  who,  at  the 
time  when  the  offense  is  committed,  is,  or  witliin  three  montlis 
previously  has  l)een,  employed  in  any  British  ship,  shall  1)0 
deemed  to  be  offenses  of  the  same  nature  res|)octively,  and  he 
inquired  of,  heard,  tried,  determined  and  adjudged  in  the  same 
manner  and  by  the  same  courts  and  in  the  same  places,  as  if 
such  offenses  had  been  ccmimitted  within  the  jurisdiction  of 
the  admiralty  of  England."  We  are  all,  therefore,  of  opinion 
that  this  objection  likewise  must  be  overruled. 

There  remains  to  i)e  considered  the  real  question  in  the 
case,  whether  killing,  under  the  circumstances  set  forth  in  tiic 
verdict,  be  or  be  not  murder.  The  contention  that  it  could  ho 
anything  else  was,  to  the  minds  of  us  all,  both  new  and  strange, 
and  we  stopped  the  attorney-general,  in  his  negative  argument. 
in  order  that  we  miglit  hear  what  could  be  said  in  support  of 
a  pro))osition  which  appeared  to  us  to  be  at  once  dangerous, 
immoral  and  opj)osed  to  all  legal  principle  and  anah)gy.  All, 
no  doubt,  that  can  be  saitl  has  been  urged  before  us,  and  wo 
are  now  to  consider  and  determine  what  it  amounts  to.  First, 
it  is  said  that  it  follows  fi'om  various  delinitions  of  murdor  in 
books  of  authority,  which  delinitions  imply,  if  they  do  not 
state,  the  doctrine  that,  in  order  to  save  your  own  life,  you 
nuiy  lawfully  take  away  the  life  of  another,  when  that  otlioi- 
is  neither  attempting  nor  threatening  yours,  nor  is  guilty  of 
any  illegal  act  whatever  towards  you  or  any  one  else.  Thit  if 
these  definitions  be  looked  at  they  will  not  be  found  to  sustain 
this  contention.  The  earliest  in  point  of  date  is  the  passage 
cited  to  us  from  Bracton,  who  lived  in  the  reign  of  Henry  III. 
It  was  at  one  time  the  fashion  to  discredit  Bracton,  as  Mr. 
lieeve  tells  us,  because  he  was  su[)posed  to  mingle  too  much 
of  the  canonist  and  civilian  with  the  common  lawyer.  There 
is  now  no  such  feeling,  but  the  passage  upon  homicide,  on 
which  reliance  is  placed,  is  a  remarkable  example  of  the  kind 
of  writing  which  may  explain  it.    Sin  and  crime  are  siwkon 


THE  QUEEN  v.  DUDLEY  AND  STEPHENS. 


fifiS 


3en  since  not 
been  always 
is  absolutely 
acted  as  fol- 
3omniitted  in 
ler  majesty's 
3  who,  at  the 
three  months 
ship,  shall  he 
tivcly,  and  he 
mI  in  the  same 
e  places,  as  if 
jurisdiction  of 
>re,  of  opinion 

lestion   in  tlie 
,et  forth  in  tli(> 
bat  it  could  he 
nv  and  slranj^o. 
itive  arj^ument, 
I  in  support  of 
nee  dangerous, 
anah>gy.    All, 
'ore  us.  and  we 
unts  to.     First, 
of  murder  in 
if  they  do  not 
ir  own  life,  ynii 
len  that  other 
nor  is  guilty  of 
le  else.     r)Ut  if 
ound  to  sustain 
B  is  the  passage 
n  of  Henry  III. 
Bracton,  as  Mr. 
ingle  too  iniich 
lawyer.    There 
3n  homicide,  on 
pie  of  the  kind 
iine  are  spoken 


of  as  apparently  equally  illegal,  and  the  crime  of  murder,  it  is 
expressly  declared,  may  be  committed  "  llmjua  vd  fado;  "  so 
that  a  man,  like  Hero,  '•  done  to  death  by  slanderous  tongues." 
would,  it  seems,  in  the  opinion  of  Bracton,  be  a  i)erson  in  re- 
si)ect  of  whom  might  be  grounded  a  legal  indictment  for  mur- 
der. But  in  the  very  passage  as  to  necessity,  on  which  reliance 
has  been  placed,  it  is  clear  that  Bracton  is  si)eaking  of  neces- 
sity in  the  ordinary  sense  — the  repelling  by  violence,  violenee 
justified,  so  far  as  it  was  necessary  for  the  object,  any  illegal 
violence  used  towards  oneself.  If,  says  Bracton,  the  necessity 
be  "  evitafjlHs,  et  ecadcre  po-^Het  (th.'^qno  occu'wnc,  tuna  enl  reus 
hoiu'icidu,^''  words  which  show  clearly  that  he  is  thinking  of 
physical  danger  from  which  emipe  may  be  possible,  and  that 
tiie  '"  iiieoifub/lis  ^iccv.s^vVtw  "  of  which  he  speaks  as  justifyin"- 
homicide  is  a  necessity  of  the  same  nature. 

It  is,  if  possible,  yet  clearer  that  the  doctrine  contended  for 
receives  no  supjjort  from  the  great  authority  of  Lord  Hale. 
It  is  j)lain  that,  in  his  view,  the  necessity  which  justified  hom- 
icide is  that  only  which  has  always  been  and  is  now  considered 
a  justilication,  "In  all  these  cases  of  lK)niicide  by  necessity," 
•says  he,  "as  in  ])ursuit  of  a  felon,  in  killing  him  that  assaults 
to  rob,  or  comes  to  burn  or  l)reak  a  house,  or  the  like,  which 
are  in  themselves  no  felony."  1  Hale's  Pleas  of  the  Crown, 
p.  4!»1.  Again,  he  says  that  ''the  necessity  which  justifies 
homicide  is  of  two  kinds:  (1)  the  necessity  which  is  of  a  pri- 
vate nature;  (2j  the  necessity  which  relates  to  the  public  jus- 
tice and  safety.  The  former  is  that  necessity  Avhich  obligeth 
a  man  to  his  own  defense  and  safeguard,  and  this  takes  in 
tiiese  inrpiii'ies:  {D  AV hat  may  be  done  for  the  safeguard  of 
a  man's  own  life;"  and  then  follow  three  other  heads  not  nec- 
essary to  ]»ursue.  Then  Lord  Hale  proceeds:  "As  touching 
the  first  of  these,  viz.,  homicide  in  defense  of  a  man's  own  life, 
which  is  usually  styled  se  defemhndo."'  It  is  not  possil)le  to 
use  words  more  clear  to  show  that  Lord  Hale  regarded  the 
private  necessity  which  justified,  and  alone  justified,  the  taking 
the  life  of  another  for  the  safeguard  of  one's  own,  to  be  what 
is  commonly  called  "  self-defense."'  Hale's  Pleas  of  the  Crown, 
I,  478. 

But  if  this  could  be  even  doul)tful  upon  Lord  Hale's  words. 
Lord  Hale  himself  has  made  it  clear.     For  in  the  cliapter  in 


p 

ft- 


566 


AMERICAN  CRIMINAL  REPORTS. 


'4: 


i 


j,S 


which  he  deals  with  the  exemption  created  by  compulsion  or 
necessity  he  thus  expresses  himself:  "If  a  man  be  desperately 
assaulted  and  in  peril  of  death,  and  cannot  otherwise  escape 
unless  to  satisfy  his  assailant's  fury,  he  will  kill  an  innocent 
person  then  present,  the  fear  and  actual  force  will  not  ac(piit 
him  of  the  crime  and  punishment  of  mm-der,  if  he  commit  the 
fact,  for  he  ought  i-ather  to  die  himself  than  kill  an  innocent; 
but  if  he  cannot  otherwise  save  his  own  life,  the  law  ])erniits 
him  in  his  own  defense  to  kill  the  assailant,  for  b\'  the  violence 
of  the  assault,  and  the  otfense  committed  upon  him  by  tlio 
assailant  himself,  the  law  of  nature,  and  nec<  ssity,  hath  made 
hira  his  own  protector  c>'7/i  dvJ>i1o  moder  mine  imndixiliw 
tutelae.''^     Hale's  Pleas  of  the  (Jrown,  vol.  I,  51. 

But,  further  still,  Lord  ITale  in  the  following  chapter  deals 
with  the  position  asserted  by  the  casuists,  and  sanctioncvl,  as 
he  says,  by  Grotius  and  J'utl'endorf.  tiiat  in  a  case  of  extrcMuc 
necessity  either  of  hunger  or  clothing:  "  Theft  is  no  tiieft,  or 
at  least  not  punishable  Jis  theft,  as  some  even  of  our  own 
lawyers  have  asserted  the  same."  "  lUit."  says  Loi'd  Hale,  "I 
take  it  that  here  in  England,  thnt  rule,  at  least  by  the  laws  of 
England,  is  false:  and  tiierefove,  if  a  person,  being  under  neces- 
sity for  want  of  victuals  or  clotiies,  sliall  uj)on  that  account 
clandestinely  and  aninio  fumnJi  steal  another  num's  goods,  it 
is  felon}',  and  a  crime  by  the  laws  of  England  punishable  with 
death."  Ilale,  Pleas  of  the  Crown,  vol.  I,  54.  If,  rJie-Moi-e, 
Lord  Ilale  is  clear  —  as  he  is  —  that  extreme  {iy,.'  -..  ••'' 
hunger  does  not  justify  larceny,  what  would  he  h,i'  u.  '  '•; 
the  doctrine  that  it  justified  murder? 

It  is  satisfactory  to  find  that  another  great  authority,  sec- 
ond, pi'obably,  only  to  Lord  Hale,  speaks  with  the  same  un- 
liesitating  clearness  on  this  matter.  Sir  Michael  Foster,  in  the 
third  cha]iter  of  his  Discourse  on  Homicide,  deals  with  the 
subject  of  "homicide  founded  in  necessity;"  and  the  whole 
chapter  implies,  and  is  insensible  unless  it  does  imply,  that  in  the 
view  of  Sir  Michael  Foster,  '*  necessity  and  self-defense"  (which 
lie  defines  as  "op])osing  force  to  force  even  to  the  deatii") 
are  convertiitle  terms.  There  is  no  hint,  no  trace,  o  f  the  (hjc 
trine  now  contended  for:  the  whole  reasoning  of  the  chai)ter 
is  entirely  inconsistent  with  it. 

In  East's  Pleas  of  the  CJrown  (vol.  I,  271)  the  whole  chapter 


THE  QUEEN  v.  DUDLEY  AND  STEPHENS. 


56i 


compulsion  or 
bo  desperatoly 
crwise  escape 
11  an  innocent. 
,vill  not  ac(put 
ho  commit  tlio 
II  an  innocent; 
he  law  permits 
oy  the  violence 
m  him  by  tlic 
;ity,  hath  niado 
i7ie    inculjxdiii' 

y  chapter  dt'iils 
I  sanctiontvl,  iis 
Mise  of  extriMiic 
t  is  no  theft,  or 
en  of  our  own 
5  Lord  Hale,  "I 
t  by  the  laws  of 
nir  under  nercs- 
m  that  acco)ii\t 

man's  <^oods,  it 
punishable  with 
.  If,  th!r:"oi'-»re, 
ne   n»-".:"  -  ■      •''■ 

le  hjv       ;>■  ■  ■•' 

authority,  soc- 
bh  the  same  un- 
lel  Foster,  in  tlio 
,  deals  with  tlio 

and  the  whole 

mply,that  intlio 

defense"  Ovhich 

to  the  deatli"! 

,raco,  o  f  the  <loc 

of  the  chapter 

,e  whole  chapter 


on  homicide  by  necessity  is  taken  up  with  an  elaborate  discus- 
sion of  the  limits  within  which  necessity  in  Sir  ]\Iichael  Foster's 
sense  (given  above)  of  self-defense  is  a  justification  of  or  excuse 
for  homicide.  There  is  a  short  section  at  the  end  very  gener- 
ally and  very  doubtfully  expressed,  in  which  the  only  instance 
discussed  is  the  well-known  one  of  two  shipwrecked  men  on  a 
plank  able  to  sustain  only  one  of  them,  and  the  conclusion  is 
left  by  Sir  Edward  East  entirely  undetermined. 

What  is  true  of  Sir  Edward  East  is  true  also  of  ^Ir.  Sergeant 
Hawkins.  The  wiiole  of  his  chapter  on  justifial)]e  homicide 
assumes  that  the  only  Justifiable  homicide  of  a  private  nature 
is  the  defense  against  force  of  a  man's  pei-son,  house  or  goods. 
In  the  twenty -sixth  section  we  find  again  the  case  of  the  two 
shipwrecked  men  and  the  single  plank,  with  the  significant 
expression  from  a  careful  writer,  "  It  /.«  m'ul  to  bo  justifiable." 
So,  too,  Dalton,  ch.  150,  clearly  considers  necessity  and  self- 
defense,  in  Sir  Michael  Foster's  sense  of  that  expression,  to  be 
convertible  terms,  thougli  he  i)rints  without  comment  Lord 
Pmcon's  instance  of  the  two  men  on  one  plank  as  a  (piotation 
from  Lord  I'acon,  adding  nothing  whatever  to  it  of  his  own. 
And  there  is  a  remarkable  passage  at  page  3;5!>,  in  which  he 
says  that  even  in  the  case  of  a  murderous  assault  upon  a  man, 
yet  before  he  may  take  the  life  of  the  man  who  assaults  him, 
even  in  self-defense,  ''cittirftf  pi'ius  ttntaiula."' 

The  passage  in  Staundfunle,  on  which  almost  the  whole  of 
tlie  dlctii  we  have  been  considering  are  built,  when  it  comes  to 
be  examined,  does  not  warrant  the  conclusion  wliich  has  been 
derived  from  it.  The  necessity  to  justify  homicide  must  be,  he 
says,  inevitable,  and  the  example  whicli  he  gives  to  illustrate 
his  meaning  is  the  very  same  which  has  just  l)een  cited  from 
Dalton,  showing  that  the  necessity  he  was  speaking  of  was  a 
physical  necessity,  and  the  self-defense  a  defense  against  phys- 
ical violence.  Ilussel  merel}'  repeats  the  language  of  the  old 
text-books,  and  adds  no  new  authority,  nor  any  fresh  consider- 
ations. 

Is  there,  then,  any  authority  for  the  proposition  which  has 
been  presented  to  us  ?  Decided  cases  there  are  none.  The  case 
of  the  seven  English  sailors  referred  to  l)y  the  commentator 
on  Grotius,  and  by  i^utfendorf,  has  been  discovered  by  a  gentle- 
man of  the  bar,  who  communicated  it  to  my  brother  Huddle- 


568 


AMERICAN  CRIMINAL  REPORTS. 


■yt  5V 


1 '  hf 

mm 

r 


ston,  to  convey  the  authority  (if  it  convoys  so  much)  of  a  single 
judge  of  the  island  of  St.  Kitts,  when  th.at  island  was  possessed 
partly  by  France  and  partly  by  this  country,  somewhere  aljout 
the  year  KUl.  It  is  mentioned  in  a  medical  treatise  publishe<l 
at  Amsterdam,  and  is  altogether,  as  authority  in  an  English 
court,  as  unsatisfactory  as  possihle.  The  American  case  cited 
by  my  brother  Stepiien  in  his  digest,  from  AVharton  on  llouii- 
cide,  in  which  it  was  decided,  correctly  indeed,  that  sailors  had 
no  right  to  throw  passengers  overboard  to  save  themselves,  but 
on  the  somewhat  strange  ground  that  the  proper  mode  of  de- 
termining who  was  to  be  sacriilced  was  to  vote  upon  the  subject 
by  ballot,  can  hardlv,  as  my  brother  Stephen  says,  be  an  autlior- 
ity  satisfactory  to  a  court  in  this  country.  The  observations  of 
Lord  Mansfield,  in  the  case  of  Ju,c  v.  Sfraffoii  (tiid  of/ic/;s, -21 
How.  St.  Tr.,  at  p.  1223,  striking  and  excellent  as  they  are. 
were  delivered  in  a  political  trial,  where  the  ((uestion  was 
Avhether  a  political  necessity  had  arisen  for  deposing  a  governor 
of  Madras.  IJut  they  have  little  a])plication  to  the  case  before 
us,  which  must  be  decided  on  very  different  considei'ations. 

The  one  real  authority  of  former  time  is  Lord  IJaiMm,  who.  in 
his  commentary  on  the  maxim,  "  /u'(V.s.vtfifn  hxliicltjti'h'ih'glniii 
quoad  jura  prliuitd,^''  lays  down  the  hiw  as  follows:  ''  Necessity 
carrieth  a  privilege  in  itself.  Necessity  is  of  throe  sorts  — 
necessity  of  conservation  of  life,  necessity  of  obedience,  and 
necessity  of  the  act  of  God  or  of  a  stranger.  First  of  conserva- 
tion of  life;  if  a  man  steals  vian<ls  to  satisfy  his  present  hunger 
this  is  no  felony  nor  larceny.  So  if  divers  bo  in  danger  of 
drowning  by  the  casting  away  of  some  boat  or  l»arge.  and 
one  of  them  got  to  some  ])lank,  or  on  the  boat's  side,  to  keep 
himself  above  water,  and  another,  to  Siive  \\\j>  life,  thrust  him 
from  it,  whereby  he  is  drowned,  this  is  neither  xe  (hfonhnih) 
nor  by  misadventure,  but  justiliable."'  Dn  this  it  is  to  be  ob- 
served that  Lord  l»acon's  prop(jsition,  that  stealing  to  satisfy 
hunger  is  no  larceny,  is  hanlly  supported  by  Staundeforde, 
whom  he  cites  for  it,  and  is  expressly  contradicted  by  Lord 
Hale  in  the  ]>assage  already  cited.  And  for  the  proposition  ns 
to  the  plank  or  boat,  it  is  saitl  to  be  derived  from  the  canonists. 
At  any  rate,  he  cites  no  authority  for  it,  and  it  must  stand 
upon  his  own.  Lord  Bacon  was  great  even  as  a  lawyer;  but 
it  is  permissible  to  much  smaller  men,  relying  upon  principle 


#.« 


"'tii 


THE  QUEEN  V.  DUDLEY    VND  STEPHENS. 


560 


I  of  a  single 
\s  possessed 
vhere  about 
50  publislicd 
an  Englisli 
n  case  cited 
)n  on  llonii- 
t  sailors  had 
'inselves,  but 
mode  of  de- 
,11  the  subject 
bean  authov- 
isei'vations  of 
Old  of/urs,  21 
jis  they  are. 
(|nestion  was 
ijr  11  o-uvernor 
10  case  bebtre 
Iderations. 
]acon,  who.  in 
It  pr'n'U<'(jiniii 
i:  "Necessity 
three  sorts  — 
•bedience.  and 
it  of  conserva- 
resent  hunger 
in  danger  of 
)r   barge,  and 
side,  to  keep 
fe,  thrust  him 
,s(!  (hftrulcwlo 
it  is  to  be  ob- 
in,"'  to  satisfy 
Staundeforde, 
icted  by  Lord 
proposition  as 
the  canonists, 
it  must  stand 
ahiwyer;  but 
poll  \)riucipU' 


and  on  the  authority  of  others,  the  equals  and  oven  the  superiors 
of  Lord  Biicon  as  lawyers,  to  (question  the  soundness  of  liis 
dictum.  There  are  many  conceivable  states  of  tilings  in  which 
it  might  possibly  be  true;  but  if  Lord  Bacon  meant  to  lay  down 
the  broad  proposition  that  a  man  may  save  his  life  l)y  killing, 
if  necessary,  an  innocent  and  unoffending  neighbor,  it  certainly 
is  not  law  at  the  present  day. 

There  remains  the  authority  of  my  brother  Stephen,  who, 
both  in  his  digest  and  in  his  History  of  the  Criminal  Law,  uses 
language  perhaps  wide  enough  to  cover  this  case.  The  lan- 
guage is  somewhat  vague  in  both  places,  but  it  does  not  in 
either  place  cover  this  case  of  necessity,  and  we  have  the  best 
authority  for  saying  that  it  was  not  meant  to  cover  it.  If  it 
had  been  necessary,  we  must  with  true  deference  have  differed 
from  him,  but  it  is  satisfactory  to  know  that  we  have,  proljably 
at  least,  arrived  at  no  conchision  in  which,  if  he  had  been  a 
member  of  the  court,  he  would  have  been  unable  to  ai-ree. 
Xeither  arc  we  in  conflict  with  any  opinion  ex])ressed  upon  the 
subject  by  the  learned  persons  who  formed  the  commission  for 
preparing  the  Criminal  Code.    They  say  on  this  subject: 

"  We  are  certainly  not  prepared  to  suggest  that  necessity 
should  in  every  case  be  a  justification.  We  are  erpially  unpre- 
pared to  suggest  that  necessity  should  in  no  case  be  a  defense ; 
we  judge  it  better  to  leave  such  questions  to  be  dealt  with 
when,  if  ever,  they  arise  in  practice  by  applying  the  principles 
of  law  to  the  circumstances  of  the  particular  case." 

It  would  have  been  satisfactory  to  us  if  these  eminent  per- 
sons could  have  told  us  whether  the  received  deiinitions  of  legal 
necessity  were  in  their  judgment  correct  and  exhaustive,  and 
if  not,  in  what  way  they  should  be  amended ;  but  as  it  is,  we 
have,  as  they  say,  "  to  apply  the  principles  of  law  to  the  cir- 
cumstances of  this  particular  case." 

Now,  except  for  the  purpose  of  testing  how  far  the  conser- 
vation of  a  man's  own  life  is  in  all  cases  and  under  all  circum- 
stances an  absolute,  unqualified  and  paramount  duty,  we  exclutle 
from  our  consideration  all  the  incidents  of  war.  We  are  tleal- 
ing  with  a  case  of  private  homicide,  not  one  imposed  upon  men 
in  the  service  of  their  sovereign  and  in  the  defense  of  their 
country.  Now  it  is  admitted  that  the  deliberate  killing  of  this 
unoffending  and  unresisting  boy  was  clc  irly  murder,  unless  the 


■•^■^^^p^ 


¥:y 


570 


AMERICAN  CRIMINAL  REPORTS. 


..*i   Mil 


1'.' 

<•' 

i' 

j; 

!i 

ihs 

1 

'4* 

^ 

■Vf 

f»'  f 

^fl 


killing  can  be  justified  by  some  well  recognized  oxcnso  admit- 
ted by  the  law.  It  is  further  admitted  that  there  was  in  this 
case  no  such  excuse,  unless  the  killing  was  jnstidod  by  wliat 
has  been  called  "  necessity."  But  the  temjitation  to  the  act 
which  existed  here  was  not  what  the  law  has  ever  called  neces- 
sity. Nor  is  this  to  be  regretted.  Though  law  and  morality 
are  not  the  same,  and  many  things  may  be  immoral  Avliich  are 
not  necessarily  illegal,  yet  the  absolute  divorce  of  law  froni 
morality  would  be  of  fatal  conse(|uence;  and  such  divorce 
would  follow  if  the  temptation  to  murder  in  this  cise  were  to 
be  held  by  law  an  absolute  defense  of  it.  It  is  not  so.  To  pre- 
serve one's  life  is,  generally  s[)oaking,  a  duty,  but  it  may  be  the 
plainest  and  the  highest  duty  to  sacrifice  it.  War  is  full  of 
instances  in  which  it  is  a  man's  duty  not  to  live,  but  to  die. 
The  duty,  in  case  of  shipwreck,  of  a  captain  to  his  crtiw,  of  the 
crew  to  the  ])assongers,  of  soldiers  to  women  and  children,  as 
in  the  noble  cases  of  the  Birkenhead^  these  duties  impose  on 
men  the  moral  necessity,  not  of  the  preservation,  but  of  the 
sacrifice  of  their  lives  for  others,  from  which  no  countiy.  least 
of  all,  it  is  to  be  hoped,  in  England,  will  men  ever  siirink,  as 
indeed  they  have  not  shrunk.  It  is  not  correct,  th(M'(>fore.  to 
say  there  is  any  absolute  or  unqualified  necessity  to  ])reserve 
one's  life.  "  Neecsse  est  tit  eain,  non  ut  vivttin,^'  is  a  saying  of  a 
Roman  oificer  (juoted  by  Lord  I'acon  himself  with  high  eulogy 
in  the  very  chapter  on  necessity  to  which  so  much  reference 
has  been  made.  It  would  be  a  very  easy  and  cheap  <lis{)lay  of 
common])lace  learning  to  (piote  from  Greek  and  Latin  authors. 
from  Iloi-ace,  from  Juvenal,  from  Cicero,  from  Euripides,  pas- 
sage after  passage,  in  which  the  duty  of  dying  for  others  has 
been  laid  down  in  glowing  and  emphatic  language  as  resulting 
from  the  i)rinciples  of  heathen  ethics;  it  is  enough  in  a  Cliris- 
tian  country  to  remind  ourselves  of  the  (xreat  Exami)]e  whom 
we  profess  to  follow.  It  is  not  needful  to  point  out  the  awful 
danger  of  admitting  the  jtrinciple  which  has  been  contended 
for.  Who  is  to  be  the  judge  of  this  sort  of  necessity  ?  I'y 
Avhat  measure  is  the  comparative  value  of  lives  to  be  nu>asuved  I 
Is  it  to  be  strength,  or  intellect,  or  what?  It  is  plain  that  the 
principle  leaves  to  him  who  is  to  profit  by  it  to  determine  the 
necessity  which  will  justify  him  in  deliberately  taking  anoth- 
er's life  to  save  his  own.    In  this  case  the  weakest,  the  young- 


COMMONWEALTH  v.  WRIGHT. 


571 


:cuso  admit- 
3  was  in  this 
iod  by  what 
\  to  the  act 
called  ncccs- 
Liul  morality 
[•al  which  are 
of  hiw  from 
such  divorce 
,  c!iso  were  to 
t  so.     To  pro- 
it  may  be  the 
\^iiY  is  full  of 
vo,  but  to  die. 
is  crciw,  of  the 
id  childreu,  as 
ics  impose  on 
m,  but  of  the 
i  couutry,  least 
over  shrink,  as 
t,  ther(>i'ore.  to 
ity  to  ])reservc 
s  a  sayitif?  of  a 
th  hi-^h  eulojxy 
lUich  r('fiM'enc(^ 
leap  (lisi)l:iy  of 
atin  authors. 
Euripides,  pas- 
for  others  has 
lo'o  as  r(>snltinj; 
Uii'h  in  a  Chris- 
example  whom 
t  out  the  awful 
)Oi^n  contended 
necessity  ?    !»}' 
to  be  measured  ? 
IS  plain  that  the 
o  determine  the 
y  talving-  anolh- 
'vcst,  the  young- 


est, the  most  unresisting,  wu.-  chosen.  "Was  it  more  necessary 
to  kill  him  than  one  of  the  gro'vn  men?  The  answer  must  be 
"No." 

"  So  spako  the  Ficn;l,  and  witli  necessity, 
The  tyrant's  plea,  excused  his  deviUsli  deeds." 

It  is  not  su<,'<'ested  that  in  this  particular  case  the  deeds  were 
"  devilish,"  but  it  is  quite  plain  that  such  a  principle  once  ad- 
mitted might  be  made  the  legal  cloak  for  unbridled  passion  and 
atrocious  crime.  There  is  no  safe  path  for  judges  to  tread  but 
to  ascertain  the  law  to  the  best  of  their  ability,  and  to  declare 
it  according  to  their  judgment;  and  if  in  any  case  the  law  ap- 
pears to  be  too  severe  on  iiulividuals,  to  leave  it  to  the  sov- 
ereign to  exercise  that  prerogative  of  mercy  Avhich  the  consti- 
tution has  intrusted  to  the  hands  fittest  to  dispense  it. 

It  must  not  be  supposed  that  in  refusing  to  admit  temptation 
to  be  an  excuse  for  crime  it  is  forgotten  how  tei-rible  the  temp- 
tation was,  how  awful  the  suffering,  how  hard  in  such  trials  to 
keep  the  judgment  straight  and  the  conduct  pure.  We  are 
often  com])elled  to  set  up  standards  we  cannot  reach  ourselves, 
and  to  lay  down  rules  which  we  could  not  ourselves  satisfy', 
IJut  a  man  has  no  right  to  declare  tem])tation  to  be  an  excuse 
though  he  might  himself  have  yielded  to  it,  nor  allow  com- 
]>assion  for  the  criminal  to  change  or  weaken  in  any  manner 
the  legal  definition  of  the  crime.  It  is,  therefore,  our  dutj""  to 
declare  that  the  prisoner's  act  in  this  case  was  wilful  murder; 
that  the  facts  as  stated  in  the  verdict  are  no  legal  justification 
of  the  homicide;  and  to  say  that  in  our  unanimous  opinion  the 
prisoners  are  upon  this  special  verdict  guilty  of  murder. 

The  court  then  proceeded  to  pass  sentence  of  death  nyion  the 
]n"isoners. 

(This  sentence  was  afterwards  commuted  by  the  crown  to 
six  months'  imprisonment.) 


Commonwealth  v.  Wright. 

(139  Mass.,  383.) 

Obscenk  publications:  Indictment. 


In  an  indictment  for  pulilishing  ohscene  matter,  although  the  matter 
referred  tt)  neetl  not  ho  stated  at  length,  there  should  he  such  an  appro- 
priate description  as  to  identify  the  publication  in  wliich  it  appeared. 


572 


AMERICAN  CRIMINAL  REPORTS. 


Edgar  J.  Sherman,  attorney-general,  and  F.  J.  Stinson,  as- 
sistant attornoy-gcncral,  lor  tlie  commonwealth. 
«/.  Z.  ]i!Ulri(hji',  for  the  defendant. 

Dkvens,  J.  This  is  an  indictment  under  the  Tub.  Stats., 
ch.  207,  ^  15,  for  publisliing  and  distrii)Utin;Lj  a  ])rintod  pajUM' 
containinfj  oljscone.  indoeent  and  ini])iire  lanmiii<,'0.  In  both 
of  the  counts  u])on  whieli  tlic  defendant  was  convicted  it  is 
alleged  to  be  a  i)aper  so  obscene  in  its  ciuiracter  that  it  cannot 
with  decency  be  spread  u|)on  the  records  of  the  court.  No 
general  description  of  it  by  title  or  contents  is  given  in  the  indict- 
ment, nor  are  anv  other  means  afforded  therebv  which  would 
distinguish  it  from  any  otiier  paper  of  its  class,  lieforo  tlic 
trial  the  defendant  moved  to  (puish  the  indictment,  among 
other  reasons,  because  it  afforded  no  proper  description  of  tlio 
alleged  obscene  paper.  It  has  heretofore  been  held  that  nu 
obscene  ])ublication  need  not  be  sj)read  at  lengtli  upon  tiio 
records  of  the  court  by  a  recital  thereof  hi  (.rtmso  in  tlie  in- 
dictment. Coin.  V.  II<i/iiH.'<,  17  Mass.,  'MW;  C<ni}.  v.  Dirho.r,  I 
Cush.,  00.  To  hold  otiierwise  would  ro(|uire  that  permanency 
and  notoriety  should  be  given  to  indecent  |)ublications  in  order 
that  they  might  be  punish(>d,  whicli  would  be  liighly  objection- 
able. I'ut  while  the  indecent  publication  need  not  be  set  forth 
at  length,  tand  it  is  suthcient  in  the  indictment  to  allege,  as  an 
excuse  for  not  doing  .so,  its  scandalous  and  obscene  charactei', 
it  must  be  identilied  by  some  general  description  which  sliiill 
show  what  the  paper  is  which  the  defendant  is  charg(Ml  with 
publishing.  Unless  this  is  done,  it  is  obvious  that  the  defend- 
ant is  not  informed  with  such  precision  as  the  law  recjuires  of 
the  offense  charged  against  him,  and  may  be  entirely  deceived 
in  regard  to  the  paper  to  which  the  obscene  character  is  attrili- 
uted.  Xor  would  the  indictment  afford  the  protection  to  th(! 
defendant  to  which  he  is  entitled  should  he  be  subsequently 
indicted  for  the  same  offense. 

In  Com.  V.  IloUneH^  uhl  supra,  the  book  which  the  defendant 
was  charged  with  publishing  was  identified  by  its  title.  In 
Com.  V.  Tarhox,  nhi  si/jn-a,  it  is  said  that,  where  a  publication  is 
so  obscene  that  it  should  not  appear  in  the  record,  "  the  state- 
ment of  the  content-  may  be  omitted  altogether,  and  a  de- 
scription thereof  sul;stituted,"  the  reason  for  the  omission  being 
made  to  appear  by  proper  averments;  but  the  renuuk  imi)lies 


a, 'J 


POYER  V.  VILLAGE  OF  DESPLAINES. 


57-T 


St  19180)1,  as- 


l»ub.  Stats., 
rintod  ]iapor 
ire.     In  both 
invictod  it  is 
hat  it  cannot 
3  court.    No 
in  tlie  indict- 
which  woul<l 
.     lie  fore  the 
ment,  anion^' 
ri|)tion  ol"  the 
hehl  that  an 
i^th   upon  till! 
cnso  in  tlic  in- 

t  pennanencv 
itions  in  onh'V 
^hly  objectittn- 
ot  bo  set  forth 
)  allo^'o,  as  an 
eno  character, 
m  which  sliall 

charj>(!(l  witli 
Kit  tiie  (lefend- 
iiw  recjuires  of 

irely  deceived 

■acter  is  attrib- 

tection  to  tlie 

subse(juently 

the  (U'fendant 
its  title.     In 
I  publication  is 
)rd,  "  the  state- 
lier, an<l  a  de- 
amission  beinjj,' 
l-enuirk  implies 


that  there  must  be  an  appropriate  description  of  the  publica- 
tion. It  is  not  easy  to  conceive  a  case  in  which  th(>  moans 
would  not  exist,  havinf^  full  regard  to  decency  and  projjriety, 
of  describing  generally,  and  thus  identifying,  tlie  jiaper  which 
the  defendant  is  charged  with  publishing.  Tim  indictment 
in  the  case  at  bar  did  not  seek  to  do  so  in  any  mimner ;  and  yet 
the  means  of  so  doing  wore  ample,  so  far  as  the  publication 
offered  in  evidence  was  concerned.  It  was  jirintod  upon  the 
back  of  the  business  card  of  the  defendant,  which  contained 
itself  no  indecency.  It  was  headed,  '•  Wanted  l>y  a  Wet  Nurse," 
and  purported  to  recite  a  conversation  between  a  young  lady 
and  the  editor  of  a  local  pajier.  Other  modes  of  describing 
the  pa^wr  migiit  also  be  readily  suggested,  none  of  which  were 
availed  of.  As  the  indictment  <loes  not  set  forth  the  offense  in 
the  manner  required  by  law,  the  order  must  bo  sustained  and 
indictment  quashed. 


PovKu  V.  Village  of  Dksplaines. 

(Appellate  Court,  First  District  of  Illinois.    Opinion  filed  January  38,  1886.) 

Ordinance  ; '  Picnics  —  Dancing  —  Nuisance. 

A  municipal  corporation  has  no  power  to  pass  an  onlinanco  declaring  r.ll 
public  picnics  and  opi'ii-air  dances  to  be  nuisances,  regardless  ol  tlie 
character  of  such  gatherings. 

Appeal  from  the  Criminal  Court  of  Cook  County.  Tried 
before  lion.  Joseph  E.  Gary. 

John  Gilhons,  for  appellant. 

Stiles  &  Lewis  and  C.  S.  Cutting,  for  api^ollee. 

This  is  an  appeal  from  a  judgment  of  the  criminal  court  of 
Cook  county  imposing  a  fine  of  §50  upon  appellant  for  an 
alleged  violation  of  an  ordinance  of  the  village  of  Desplaines 
in  relation  to  picnics  and  open-air  dances.  The  village  of  Des- 
plaines is  organized  under  the  general  act  in  relation  to  cities 
and  villages,  and  appellant  was  the  owner  of  grounds  lying 
within  the  corporate  limits  of  the  village,  which  he  rents  or 
uses  for  picnics  and  open-air  dances. 

1  Concert  Saloons,  see  note  to  this  case. 


PV!^ 


574 


AMERICAN  CRIMINAL  REPORTS. 


■  >?■ 


The  ordinance  is  as  follows: 

"  Ordiuiiiico  declaring  picnics  and  open-air  dances  a  nuisance, 
and  prohibiting  the  same: 

"  "Whereas,  for  several  years  past,  various  parties,  residents  of 
or  owning  real  estate  within  the  village  of  Desplaines,  have 
kept  and  rented  for  so-called  picnic  purposes  various  tracts  uf 
timber  lands  within  said  village,  and  in  consc(]uen:-e  whereof 
the  Chicago  <k  Northwestern  Ilailway  Company  has  been  ac- 
customed to  run  between  the  city  of  Chicago  and  various  points 
within  said  village  certain  special  railway  trains,  commonly 
called  picnic  trains,  whereby  large  numbei's  of  vicious  ami 
abandoned  persons  are  at  short  intervals  brought  from  said  city 
to  said  picnic  grounds,  by  which  said  persons  various  crimes 
and  misdemeanors  have  been  committed;  and, 

"  Whereas,  by  reason  of  said  picnics  and  the  i)ersons  gatli- 
ered  in  and  about  said  grounds  in  consequence  thereof,  the 
people  of  the  said  village  of  Desplaines  are  constantly  in  dan- 
ger of  bodily  injury  and  pecuniary  loss  through  larcenies  com- 
mitted by  such  persons,  and  are  greatly  annoyed  in  tlie 
possession  of  their  projierty  by  constantly  recurring  trespassfs 
which  the  police  of  the  village  are  entirely  unable  to  prevent. 
on  account  of  the  number  of  the  trespassers  thus  gathered 
together  on  account  of  said  picnics: 

"  Therefore,  be  it  ordained  by  tlie  president  and  board  of 
trustees  of  the  village  of  Desjilaines : 

"  Section  1.  Th.it  all  public  picnics  and  open-air  dances 
witliin  the  limits  of  said  village  are  hcrebv  declared  to  be  nui- 
sauces. 

"  Section  2.  That  for  any  person  or  ])crsons  to  rent,  use,  or 
allow  to  be  used,  any  yard,  ground,  grove  or  other  real  estate 
within  the  corporate  limits  of  ilic  village  of  Desplaines,  for 
public  picnic  purposes  or  for  open-air  dances,  or  to  permit  or 
in  any  way  allow  the  use  of  such  pro^jcrty  for  any  purpose  by 
which  dis(jrderly  persons  are  gathered  in  or  about  said  village 
of  Desplaines,  shall  constitute,  and  is  hereby  declai'ed  to  be,  a 
nuisance.  Any  perscm  creating  or  permitting  any  nuisance 
mentioned  and  declared  in  this  ordinance  to  exist,  having  the 
right  or  })ower  to  abate  the  same,  shall  be  subject  to  a  line  of 
not  less  than  '^')(^,  and  not  exceeding  !?100,  in  every  case;  and 
each  renting,  using,  or  allowing  to  be  used,  of  any  such  prem- 


POYER  V.  VILLAGE  OF  DESPL^UNES. 


575 


es  a  nuisance. 

;s,  residents  of 
■splaiues,  liave 
[•ions  tracts  vi 
ncnco  wheroot" 
'  has  been  ac- 
various  points 
ins,  coniuionly 
•f  vicious  and 
from  said  city 
various  crimes 

]iersons  gatli- 
ce  thereof,  the 
stantly  in  diin- 

hircenies  coin- 
iinoyed  in  the 
[•ring  trespasses 
ible  to  previ'iii. 

thus  gatheivd 

;  and  board  of 

jpen-air  (lanc(>s 
arcd  to  be  niii- 

to  rent,  use,  or 

thcr  real  estate 

Desplaincs,  foi' 

or  to  permit  or 

any  purpcwe  by 

jut  said  village 

echired  to  be.  a 

g  any  nuisance 

ist,  having  the 

ect  to  a  line  of 

jvery  ease;  and 

any  such  prem- 


ises for  the  purposes  aforesaid,  or  any  of  them,  sliall  be  deemed 
the  creating  of  a  nuisance,  and  the  author  thereof  be  subject 
to  a  like  fine." 

The  case  was  tried  by  a  jury,  and  the  court,  at  the  request 
of  the  piaintitf,  gave  the  following  instructions: 

"  The  jury  are  instru6ted  that  the  ordiiunce  of  the  village 
of  Desplaines,  introduced  in  evidence  in  this  case,  is  valid  and 
binding  in  law,  and  that  if  you  believe  from  the  evidence  that 
the  defenthmt  did,  on  the  31st  day  of  July,  A.  1).  lss;{,  rent, 
use,  or  allow  to  be  used,  any  yard,  ground,  grove  or  other  real 
estate  within  the  corporate  limits  of  the  village  of  J)esi)laines 
for  public  picnic  purposes,  or  did  on  said  day  allow  the  use  of 
such  i)roi)erty  for  any  i)urpose  by  which  disorderly  persons 
were  gathered  in  or  a])out  the  said  village  of  Desplaines,  then 
you  should  find  the  defendant  guilty,  and  assess  his  line  at  a 
sum  not  excee<ling  .^100,  nor  less  than  ^50. 

"The  jury  are  instructed  that  picnics  held  in  grounds  noto-^'- 
ously  used  for  i)icnic  purposes,  to  which  all  are  admitted  with- 
out question,  there  being  no  barriers  to  ])revent  such  admis- 
sion, and  no  discrimination  exercised  by  the  proprietors  or 
managers  as  to  such  admission,  wliere  ret'reslunents  are  for 
sale  to  all  who  wish  to  buy,  l>y  the  owner  of  the  pi'emises  for 
his  own  profit,  are  jiublic  i)icnics  within  the  meaning  of  the 
ordinance  olfered  in  evidence  in  this  case." 

To  the  giving  of  which  the  defendant  duly  excepted. 

Ami  tile  court  refused  the  following  instructions  asked  by  the 
defendant : 

"1.  The  court  insti'ucts  the  jury  that  the  ordinance  offered  in 
evidence  is  void  in  so  far  as  it  seeks  to  declare  all  public  picnics 
and  open-air  dances  to  be  nuisances,  regardless  of  the  char- 
acter of  such  picnics  and  open-air  dances. 

"  2.  The  court  instructs  the  jury  that  the  mere  declaration  by 
the  board  of  trustees  of  the  village  of  Desplaines  that  all  public 
picnics  and  open-air  dances  within  the  limits  of  said  village  are 
miisances,  does  not  make  them  nuisances  unless  they  are  such 
in  fact.  It  is  for  vou  to  determine,  therefore,  from  the  evi- 
dence,  whether  or  not  the  picnic  alleged  to  have  been  held  on 
the  31st  day  of  July,  18S3,  was  or  was  not  a  nuisance."  To 
which  refusal  of  the  court  to  give  said  instructions  the  defend- 
ant duly  excepted. 


'  (1  ■  • 


570 


AMERICAN  CRIMINAL  REPORTS. 


Opinion  of  the  court  by  "Wilsox,  J.: 

The  phiintilf  introduced  evidence  tending  to  prove  that  on 
July  31,  1883,  a  picnic  was  held  on  defendant's  grounds  with 
liis  consent,  and  that  a  large  number  of  disorderly  persons 
were  assembled  in  and  about  said  grounds,  conducting  them 
selves  in  a  I'iotous  manner,  drinking,  gambling,  iiring  guns, 
etc.,  to  the  great  annoyance  of  the  citizens  of  the  village.  On 
the  other  hand,  the  defendant  introduced  evidence  tend  in":  to 
prove  that  the  grounds  were  never  rented  for  ])ublic  picnics; 
that  the}"^  were  only  rented  for  Sunday  school  and  church  so- 
cieties, or  societies  of  that  nature;  that  on  the  day  in  question 
they  were  rented  to  a  society  known  as  the  Columl)kills  Church 
Societ\%  for  the  holding  of  their  annual  society  ])icnic;  and  that 
there  was  no  drinking  or  disorderly  conduct,  except  such  as 
miffht  have  been  caused  by  intoxicating  drinks  sold  in  saloons 
licensed  by  the  village. 

By  the  first  section  of  the  ordinance,  all  public  picnics  and 
open-air  dances  within  the  limits  of  the  village  are  (hiclared  to 
be  nuisances.  And  by  section  2,  it  is  declared  to  constitute  a 
nuisance  for  any  person  to  use,  or  rent  to  be  us(m1,  any  ground 
for  public  picnic  pur])oses  or  open-air  dances;  or  to  allow  the 
use  of  such  propei'ty  for  any  ])urpose  by  which  disorderly  per- 
sons are  gathered  in  or  about  said  village. 

By  giving  the  first  instruction  for  the  plaintiff,  and  refusing 
the  first  and  second  instructions  for  the  defendant,  the  court, 
in  effect,  declared  all  public  picnics  and  open-air  dances,  re- 
gardless of  their  character,  to  be  nuisances,  and  that  it  was  im- 
material whether  they  were  conducted  in  a  (|uiet  and  orderly 
manner  or  otherwise;  it  being  sulticient  to  show  that  the  de- 
fendant permitted  a  public  picnic  or  open-air  dance  to  be  held. 

To  this  view  we  are  unwilling  to  assent.  It  would  be  a 
startling  proi)osition  that  under  this  general  grant  of  power,  au- 
thorizing cities  and  villages  to  declare  what  shall  be  nui.sances, 
they  could  prevent  the  i)eople  from  assend)ling  in  a  peaceable 
and  orderly  manner,  on  suitable  occasions,  to  indulge  in  health- 
ful recreations  and  innocent  amusements.  It  is  diHicult  to  sec 
why  dancing  in  the  open  air  is  po'  hc  any  more  re|)rehensil)le. 
or  more  of  a  nuisance,  than  playing  at  leap  frog  or  lawn  tennis. 
The  groves  and  green  woods  arc  nature's  own  temples,  to  which 
the  people  have  the  right  to  repair,  with  the  consent  of  the 


'iT^' 


POYER  V.  VILLAGE  OF  DESPLAINES. 


577 


>rove  that  on 
o-rouiuls  with 
Icrly  persons 
ui'ting  thciu 
liring  guns. 
'  village.    On 
CO  tending  to 
)nl)lic  picnics; 
nil  cliurch  so- 
iiy  in  question 
,ii)kills(niurch 
icnic ;  and  tlnit 
■xcept  such  as 
iold  in  saloons 

lie  picnics  and 
iro  (Uidaved  t(j 
to  constitute  a 
lmI.  any  ground 
or  to  allow  the 
disorderly  per- 

ff,  and  refusing 
lant,  the  court, 
air  dances,  re- 
that  it  was  inv 
it  and  orderly 
w  that  the  de- 
mce  to  bo  held. 
It  would  be  a 
nt  of  power,  au- 
di be  nuisances. 

in  a  peaceable 
lulgc  in  health- 
s  dilHcnlt  to  see 
0  reprehensible. 
f  or  lawn  tennis, 
miples,  to  whieh 

consent  of  tlie 


owner,  for  rational  sports  and  social  intercourse,  provided  they 
do  not  disturb  the  public  peace,  nor  encroach  upon  private 
rights.  The  franiers  of  the  constitution  inserted  in  that  in- 
strument a  clause  making  inviolate  the  right  of  the  people  to 
assemble  in  a  peaceable  manner  t(j  consult  for  the  common 
good,  to  make  known  their  opinions  to  their  representatives, 
and  to  apply  for  redress  of  theii'  grievances.  AxA  it  may  well 
be  supposed  that  they  would  liavo  added  the  right  to  assemble 
for  open-air  amusements,  had  any  one  imagined  that  the  power 
to  deny  the  existence  of  such  right  would  ever  be  asserted  by 
a  municipal  corporation. 

The  question  now  presented  is  not  whether  municipal  cor- 
porations may  not  declare  riotous  ami  disorderly  gatherings  to 
be  nuisances,  for  in  respect  to  such  gatherings  the  ordinance  is 
only  declaratory  of  the  couimon  law.  Thus  in  Hex  v.  Jloot'e, 
3  Barn.  *fc  Adol.,  18-1-  (2;>  Kng.  Com.  L,  188),  where  the  indict- 
ment charged  the  defendant  with  koei)ing  certain  grounds  for 
the  use  of  persons  to  practice  rille-shooting,  and  i)ernutted  idle 
and  disorderly  [)ersons,  armed  with  guns,  to  meet  there,  etc.. 
Lord  Tentcrden  said:  "Ifapei'son  collects  together  a  crowd 
of  people  to  the  annoyance  of  his  lUMghbors,  that  is  a  nuisance 
for  which  he  is  answei-able.     And  tills  is  an  old  principle." 

In  the  present  case  the  ordinance;  declares  all  public  picnics 
and  open-air  dances,  nuisances,  however  (juiet  and  orderly  they 
may  be.  In  Wood  on  Nuisances,  sec.  I'T,  it  is  said:  "The  ques- 
tion is  not  wheliier  an  act  has  been  declared  to  be,  but  does  it 
come  within  the  idea  of  a  nuisance T' 

Judge  Dillon,  in  his  work  on  municipal  corporations  ('2d  ed.), 
sec.  37-t,  in  speaking  of  nuisances  and  of  the  power  of  munici- 
])al  authorities  to  prevent  and  abate  them,  says:  "This 
authority  may  be  constitutionally  conferred  on  the  incorpo- 
rated place,  and  it  authorizes  its  council  to  act  against  that 
which  comes  within  the  legal  notion  (^f  a  nuisance;  but  such 
power,  conferred  in  gc^neral  terms,  cannot  be  taken  to  author- 
ize the  extrajudicial  condemnation  of  that  as  a  nuisance  which 
in  its  nature,  situation  or  use  is  not  such,"  citing  numerous  au- 
thorities. 

Under  the  English  munieijial  c<jrporation  act,   whore  the 
powere  conferred  are  similar  to  those  conferred  by  our  statute, 
it  is  held  that  the  power  to  suppress  nuisances  is  conlined  to 
Vol.  V  — a: 


m. 


678 


AMERICAN  CRIMINAL  REPORTS. 


r 


the  suppression  and  prohibition  of  acts  which,  if  done,  must 
necessarily  and  inevitably  cause  a  nuisance,  and  does  not  em- 
power the  council  to  impose  penalties  for  the  doing  of  things 
which  may  or  may  not  be,  a  nuisance  according  to  circum- 
stances. Addison  on  Torts,  5i,  citing  Everett  v.  drape^i,  3  T.  l\. 
(N.  S.),  Q.  H.,  (509;  Wan^tead  Local  Board  v.  llill,  13  C.  E. 
(X.  S.),  479;  and  see  also  Dard  v.  J*eoj)le,  51  111.,  286;  Welc/i  v. 
Stowe/l,  2  Doug.  (Mich,),  332;  Vates  v.  Citi/  of  Milmmlcee,  !(► 
Wall.,  497,  in  which  Mr.  Justice  Miller  said:  "The  mere  dec 
laration  by  the  city  council,  that  a  certain  structure  was  an 
encroachment  or  obstruction,  did  not  make  it  a  nuisance  un- 
less it  in  fact  had  that  character."  It  is  unnecessary  to  cite 
other  cases  to  the  same  effect. 

In  North  Ch'wago  City  JiaHn'ai/  Co.  v.  Lal'e  View,  105  111.. 
207,  cited  by  appellant's  counsel,  the  town  passed  an  ordinance 
declaring  the  use  of  steam  as  a  motive  power  in  operating  tlu^ 
company's  railway  along  one  of  the  pul>lic  streets  of  the  town 
to  be  a  nuisance.  The  supreme  court  held  the  ordiiumce  valid. 
but  says:  "  We  do  not  at  all  question  the  proposition  that,  uii 
der  a  general  grant  of  power  like  the  one  in  (piestion,  town 
authorities  have  no  power  to  pass  an  ordinance  declaring  a 
tlnng  a  nuisance  wliich  is  clearly  not  one.  The  adoption  of 
such  an  ordinance  would  not  he  a  legitimate  exercise  of  tln' 
power  gi'anted,  but  on  the  contrary  would  be  an  abuse  of  it." 
There  the  thing  complained  of  as  a  nuisance  could  by  no 
means  be  said  to  be  clearly  not  one.  On  the  contrary  it  is,  to 
say  the  hnist,  doubtful  whether  the  running  of  steam  cars  aloni;' 
the  public  streets  of  a  village  is  not  /or  .sr  a  nuisance;  and  the 
court  a(hl:  "lint  in  doubtful  cases,  where  a  thing  may  or 
may  not  be  a  nuisance,  depending  upon  a  variety  of  circum- 
stances recjuiring  judgment  and  <liscretion  on  the  ])art  of  tlic 
town  authorities  in  exercising  their  higislative  functions,  their 
action  under  such  circumstances  would  be  conclusive  of  tlic 
(juestion." 

Our  conclusion  is  that  so  much  of  the  ordinance  as  declares 
all  public  picnics  and  o[)en-air  dances,  regardless  of  their  char- 
acter, to  be  nuisances,  is  invalid,  arul  that  the  court  erred  in  le 
fusing  to  so  instruct  the  jury.  Whether  the  gathering  on  July 
31st  was  of  such  a  character  as  to  bring  it  within  the  second 
clause  of  the  ordinance  which  declares  the  use  of  the  "-roumls 


POYER  V.  VILLAGE  OF  DESPLAINES. 


579 


done,  must 
ioes  not  em- 
\g  of  things 
<r  to  circum- 
•vf^>t'.y,  3  T.  U. 

r;/i,  i;i  C.  B. 

286;  Welch  V. 
[UiOitid'ee,  l<> 
'ho  more  dec 
sture  was  an 
nuisance  un- 
3ssary  to  cite 

View,  105  111.. 
I  an  ordinance 
operating  the 
ts  of  the  town 
•di nance  vahd. 
sition  tliat,  un 
jiiestion,  town 
po  dechiring  a 
u'  adoption  »»f 
,'xorcise  of  the 
1  abuse  of  it." 

couhl  by  no 
>ntrary  it  is,  to 
(>aui  cars  alonii" 
isun(!e ;  and  the 
thing  may  or 
iety  of  circum- 

10  ])!irt  of  tin! 
functions,  tht'if 
nchisive  of  th<' 

inoe  as  doclavcs 
is  of  their  cliiU'- 
Durt  erred  in  re 
tliering  on  July 
bin  the  second 
of  the  grounds 


for  the  assembling  of  disorderly  persons,  etc.,  to  be  a  nuisance 
was  a  question  of  fact  for  the  jury,  to  be  decided  according  to 
the  evidence,  under  proper  instructions  by  the  court. 

For  the  errors  indicated,  the  judgment  below  is  reversed  and 
the  cause  remanded  for  a  new  trial. 

Bever^ed  arid  remanded. 

McAr.LisTEK  and  Bailkv,  JJ.,  concurred. 

NoTK.— Tlie  following  opinion  by  Judge  W.  K.  McAllister  was  rendered 
in  the  criminal  court  of  Cook  county  in  the  case  of  The  Citij  of  Chkngo  v. 
PoUjicmv,  Au<rist  13,  1878.  The  issues  involved  are  so  analogous  to  those 
presented  in  tne  preceding  case  that  we  need  not  aiK)logize  for  giving  it  in 
lull  in  this  place.  The  novelty  of  tiie  (piestion  and  the  high  standing  of 
the  learned  judge  entitles  it  to  respectful  attention  and  consideration: 

McAllister,  J. :  This  is  an  ai)pcal  from  the  Judgment  of  tlie  police  court 
imposing  a  fine  upon  the  defendant  for  having  music  in  his  heer  hall  in  vio- 
lation, as  it  is  alleged,  of  section  6,  chapter  48,  of  Revised  Ordinances.  Upon 
the  stipulation  between  the  i)arties  a.s  to  all  the  facts,  the  caso  is  submitted 
to  the  court  without  a  jury. 

It  appears  from  the  stipulation  that  defendant  erected  and  is  the  owner  of 
the  building;  that  it  was  built  for  the  purpose  of  a  be(>r  saloon,  and  is  worth 
130,000;  for  the  keeping  of  which  as  a  saloon  he  had  a  city  license;  that  de- 
fendant had  therein  a  piano-forte  upon  which  his  daughter  was  accustomed 
to  play,  ami  she  also  sang. 

She  was  accompanied  with  a  violin  and  a  cornet.  In  this  way  music  was 
made  niglitly  for  the  entertainment  of  defendant's  patrons,  there  being  no 
other  entertainment  or  exhil)ition.  These  are  all  the  facts,  and  the  question 
of  law  is  whether  a  mere  nmsical  performance,  such  as  described  above, 
free  from  everything  indecorous,  though  given  in  a  beer  hall  or  saloon, 
amounts  to  a  violation  of  the  ordin;mce  in  (juestion,  and  sub  jects  the  pro- 
nvietor  to  a  jM-nalty  and  forfeiture  of  his  license.  Section  6  reads:  "No 
;>erson  or  persons  shall  lie  allowed  to  give  concerts  and  exhibitions  of  any 
kind  in  any  lict'nsed  saloon  or  grocery  within  the  city  of  Chicago,  and  any 
person  or  persons  violating  the  provisions  of  tiiis  section  shall  be  fined  in  a 
-mn  of  not  less  thiui  $.">  nor  exceeding  !f50,  and  shall  iiave  his  or  her  license 
r<>voked,  in  the  discretion  of  the  mayor." 

It  is  a  general  rule  that  the  by-laws  or  ordinances  of  a  municipal  corpo- 
ration should  receive  not  a  strict,  but  a  reasonable  construction,  except 
where  they  define  otfenses  amoiuiting  to  misdemeanor,  or  are  highly  penal 
hi  their  nature,  in  which  ciuses  they  will  be  strictly  construed,  and  must 
clearly  embrace  the  offense  charged.  KincMifV,  Com,,  IB.  Jhnnoe  (Ky.), 
361. 

In  the  case  under  consideration,  the  pentilty  may  extend  to  iJ.'iO  and  a  f<jr- 
feitiu'e  of  license.  When  the  cost  of  a  license  is  considered  with  the  results 
of  its  revocation,  to  a  i)arty  owning  such  a  building  and  constructed  for 
such  a  purpose  as  described  in  the  agreed  cast",  tiiis  ordinance  should  be  re- 
narded  as  highly  jienal  in  its  nature:  and,  to  say  the  least,  the  offense,  as 
proven,  should  be  fairly  embraced  within  its  language  or  intent. 


580 


AMERICAN  CRIMINAL  REPORTS. 


■:l  ^' 


The  musical  iierformaiioc  described  was,  or  probably  does  fall  within  the 
meaning  of  tlie  word  concert,  according  to  its  common  acceptation ;  and  if 
thelnnguage  had  been,  "  no  person  or  persons  sliall  be  allowed  to  give  con- 
< !  i  .'1  or  pxliibitioiis  of  any  kind  in  any  licensed  saloon,"  etc.,  the  case  stated 
^'.  ould  fall  within  the  prohibition.  But  such  is  not  the  laiifiiiage.  The 
word  "concert"  is  connected  with  the  word  "exliil)itioii"  by  the  copula- 
lativo  conjunction  "  and  "  yi  that  ^'i  clause  defining  the  ofTcmse  m,  "shall 
not  lje  allowed  to  give  (jonc^erts  and  exhibitions  of  any  kind," —  that  is,  cdii- 
certs  and  exhiliilions  combined,  of  any  kind. 

It  is  well  known  as  a  matter  of  local  contemporancfius  history,  that,  attlit 
time  of  the  passage  of  this  ordinance,  low  and  degrading  shows  were  in- 
troduced in  certain  saloons,  called  "varieties,"  and  music  w;us i>rostituted  to 
their  uses.  This  was  during  the  war,  and  the  ordinance  wjis  for  their  sup- 
pression.   They  were  clearly  embraced  within  its  ti'rnis. 

But  when  the  provisions  of  the  ordinance  are  considered,  it  is  plain  to  my 
mind  that  it  was  not  the  intention  of  the  council  to  jirohibit  mere  musicul 
performances  by  the  citizens  of  the  city,  unaccompanied  by  aiiy  other  ex- 
hibitions, no  matter  how  high  the  order  of  the  nmsic,  and  decorous  and 
chaste  its  character.  Nor  was  it  the  intention  of  tiie  legislature  to  confer 
any  such  power.  The  whole  power  is  conferred  in  the  words  in  subdivision 
13  of  section  8,  charter  of  lf^0;5:  "To  regulate,  license,  suppress  and  pro- 
hibit all  exhibitions  of  (rommon  showmen,  shows  of  every  kind,  con<'('rts  or 
musical  entertainments  by  itinei'ant  persons  or  companies."  Clary's  Revision, 
1866,  p.  25. 

By  this  the  right  to  suppress  or  prohibit  concerts  or  musical  entertain- 
ments was  limited  to  those  by  itinerant  persons  or  companies,  which  im- 
pliedly excluiled  the  right  to  do  so  iis  to  citizens  not  belonging  to  the  cliiss 
fi})ecificd,  and  this  is  the  construction  the  council  put  upon  it,  when  they 
passed  the  ordinance  in  question  (see  (Jary's  Laws,  l>S(!(i,  p.  ;{;5;{i,  the  first 
section  of  which  provides  for  licensing  shows,  exhibitions  and  musical  en- 
tertainments, but  the  council  added  this  proviso:  "  Provided,  that  for  mu- 
sical parties  or  concerts  and  exhibition  of  p;iiiitinu;s  or  statuary,  given  or 
made  by  citizens  of  this  city,  no  license  shail  be  reipiired," 

As  the  onlinance  now  stands,  no  license  is  reipiired  for  a  musical  enter- 
tainment or  concert  by  the  citizens  of  the  city.  Nor  can  I  find  anyanthorits 
in  the  old  or  new  charter  to  sujiiiiess  or  jn-ohibit  them  unless  they  part;il;«' 
of  a  disorderly  or  indecent  chararler.  And  why,  in  the  name  of  conunmi 
sense,  should  any  such  authoritj'  be  conferred';'  Why,  ius  we  are  nearingtiic 
close  of  the  nineteenth  century,  should  the  heel  of  power  be  j)laced  upon 
one  of  the  noblest  arts  of  civilization? 

Any  person  conversant  with  the  history  of  civilization  in  Euro[)e  and  in 
this  country  nuist  admit  that  of  jill  tlit!  productions  of  genius  within  tin' 
List  two  centuries,  none  have  contributed  more  toward  humanizing  and  n- 
fining  the  people  than  those  of  the  great  masters  of  music.  They  have 
indeed  proved  Itenefactors  of  the  race.  And  it  may  be  safely  asserted  as  a 
tajct  that  the  innnortal  compositions  of  Handel,  Haydn,  Beethoven  ami 
Mozart  alone  have  done  more  toward  iiis|iiriiig  |iur('  and  lofty  religious  emo- 
tions in  the  human  heart,  than  all  the  utterances  of  dogmatic  theology,  sine  • 
the  eldest  of  these  masters  was  born.  Shakspeare  and  Milton  — one,  tiiu 
poet  of  nature,  the  other  of  puritunism  —  iuivo  both  evinced  in  their  writ- 


STATE  V.  KANTLEa 


581 


fall  within  the 
ptiition ;  and  if 
eil  to  give  con- 
th«'«'aso  stati'il 
anguagf.  The 
liy  tho  fdpuld- 
f«!nHeia,  "shall 
'— tliat  is,  (^oii- 

ory,  that,  at  till 
shows  were  in- 
aa  prostituted  to 
im  for  their  sup- 
it  is  plain  to  luy 
)it  Miere  musiial 
by  any  other  ox- 
ad  decorous  and 
slature  to  confer 
ds  in  subdivision 
ippn^ss  and  pm- 
kind,  concerts  or 
Gary's  Revision. 

lusical  cntertain- 
uiies,  which  ini- 
<;\n>r  to  the  class 

)ii  it,  when  they 
p.  '.\',\',\),  the  first 
and  uiusical  en- 

U'd,  that  for  nui- 
iituary,  given  or 


a  nuisical  enter- 

nd  any  authoril.v 

ilcss  they  partaU"' 

iianu'  of  conunoii 

■e  are  nearingtlic 

be  placed  upon 


in  Europe  aiul  in 
;enius  within  the 
iiuianizing  and  n - 
uisic.    Tliey  have 
afely  asserted  as  a 
1,  Beethoven  and 
>tty  religious  emo- 
itic  theology,  sine.' 
Milton  — one,  the 
cud  in  their  writ- 


ings the  most  exquisite  and  tender  appreciation  of  music.  The  inspired 
Beethoven  believed  and  decl.-u-eil  that  music  was  a  higher  revelation  than 
flcience  or  philosophy.  Lecky,  a  writer  controlled  largely  by  the  philosophic 
faculty,  declares,  in  his  recent  work  on  English  history,  that  Hamlel  was,  in 
his  own  spliere,  among  tlie  master  intellects  of  mankind ;  that  his  name  can 
be  placed  little  lielow  those  of  Kaphael  and  Phidias,  and  that  it  is  to  his 
sacred  music  that  his  pre-eminence  is  mainly  due.  Now  what  can  be  said  — 
rationally  and  divested  of  all  fanatical  tendencies  — against  what  has  been 
urged  in  favor  of  nuisical  concertsV  I  have  yet  to  find  out  for  the  first  tune 
that  any  statesman,  publicist  or  jurist  ha«  ever  claimed  that  chaste  musical 
entertainments  had  any  immoral  or  demoralizing  tendency. 

We  have  among  us  a  large  population  of  foreign  birth,  to  whose  native 
country  by  far  the  largest  proportion  of  the  workl's  great  masters  of  music 
belonged.  That  nation  has  attained  the  very  highest  excellence  and  skill  in 
musical  instrumentation.  It  luw  long  bei'u  the  custom  t>f  tlmt  people  to 
have  produced  in  their  beer  halls  and  gardens,  with  rare  skill  and  excellence, 
the  best  and  most  ditHcult  of  classical  music,  compuseil  chietly  by  their  own 
countrymen  of  precious  ini^mory.  This  custom  tlujy  have  brought  here  and 
they  have  put  it  in  i)ractice.  The  general  character  of  that  people  for 
peaceableness,  general  good  morals  and  thrift  is  conclusive  evidence  that 
the  custom  is  not  one  of  evil  tendency. 

And  it  seems  highly  repugnant  to  the  genius  of  free  institutions,  that  a 
custom,  fraught  with  so  nuich  innocent  iileasure,  and  that  encourages  the 
development  of  an  art  which  ranks  erpially  with  all  her  sister  arts,  should 
be  brought  under  the  domination  of  the  i)olice  instincts  of  the  human  soul, 
subjected  to  mere  brute  force.  Our  legislators,  l)Oth  in  the  legislature  and 
council,  acting  upon  an  enlightened  policy  which  perceived  all  the  active 
agencies  tending  to  promote  the  advancement  of  civilization,  have  not 
luidertakento  thus  abridge  thi>  natural  rights  of  our  citizens,  as  I  have  en- 
deavored, and  think  have,  conclusively  shown. 

The  judgment  of  the  police  court  will  be  reversed,  and  judgment  entered 
for  defendant. 


State  v.  Kantleb 
(33  Minn.,  69.) 


Ordinance:  Charter — Intoxicating  liquors  —  License  — Restricted  dis- 

triet. 

1.  City  CHARTER  —  Meetings  of  citycouxcil.— A  city  charier  re<iu  ring 
the  city  council  to  hold"state<l  meetings,"  hut  making  no  provision 
as  to  the  manner  in  which  the  time  for  the  holding  of  such  meetings 
shall  be  fixed,  the  city  council  may.  up<in  simple  motion,  prescribe  such 
time,  and  the  time  for  the  holding  of  stated  meetings  may  be  changed 
by  the  action  of  the  city  council  alone,  upon  mere  motion,  although  it 
had  been  previously  fixed  by  a  formal  resolution,  M;)pri)vetl  by  the 
mayor,  and  published. 


682 


AMERICAN  CRIMINAL  REPORTS. 


2.  That  part  op  ordinance  restrictixo  sale  op  liquor  to  districts 
DESIGNATED  BY  MAYOR,  UNCONSTITUTIONAL.— A  city  ordinance  pro- 
hibiting the  sale  of  liquor  without  a  liconso,  anil  imposing  certain 
regulations  upon  the  business,  among  which  wa.s  one  retstricting  it  to 
certain  districts  of  the  city  to  he.  itcvrjiiatrd  by  the  mayor,  considered 
unconstitutional  as  to  the  last-named  attempted  restriction,  but  other- 
wise valid. 

8.  Amendment  of  ordinance. —  A  subseiiuent  amendment  of  the  uncon- 
stitutional portion  of  the  ordinance  —  the  amendment  designating  the 
districts  within  which  only  the  business  might  be  authorized  by  license— 
held  a  valiil  amendment. 

4,  Sale  outside  of  distrkjt. — Under  such  an  ordinance,  selling  intox- 
icating liquor  outside  of  sucli  license  districts,  without  a  license,  con- 
stituted the  prescribed  olfense  of  selling  witlK)ut  a  license. 


Appeal  from  an  order  of  the  Minneiqjolis  Municipal  Court. 

Frank  II.  Cadeton  and  Judson  N.  Ci'om,  for  the  state. 
Chas.  A.  EbeH  and  Johi  IL  Lotuj,  for  appellant. 

Dickinson,  J.  The  defendant  was  convicted  upon  a  prosoru- 
tion  for  selling  intoxicating  liquor  witliout  a  license,  in  viola- 
tion of  an  ordinance  of  tlie  city  of  Minneapolis.  The  ordinance 
was  originally  enacted  in  Ai)ril,  18S4,  and  was  amended  in 
June,  1884.  The  grounds  upon  wliicli  the  defendant  contests 
the  legality  of  the  conviction  may  be  thus  stated:  (I)  The 
amendat(jry  ordinance  was  not  legally  enacted,  because  its  first 
reading  was  not  at  a  legal  meeting  of  the  common  council; 

(2)  the  original  ordinance  was  unconstitutional  and  void,  and  it 
was  not  rendered  valid  by  the  aniondment,  which  did  not.  in 
terms,  re-enact  the  original  oi'dinanco,  but  mei'ely  amended  tlic 
portions  of  it  which  had  involved  the  unconstitutional  featuros; 

(3)  the  ordinance,  as  amended,  absolutely  j)roliibits  the  sale  of 
liquors  in  the  city  outside  of  certain  prescribed  districts,  iuul 
the  act  alleged  against  the  defendant,  being  done  outside  of 
such  districts,  did  not  constitute  the  offense  of  KeUiny  irUliont 

1,  The  charter  provides  (Sp.  Laws  1881,  ch.  7fi,  subch.  4,  sec. 
2)  that  "  the  city  council  shall  liold  stated  meetings,  and  the 
mayor  may  call  special  meetings  by  notice.  ...  It  shall 
determine  the  rules  of  its  own  proceedings,  and  have  power  to 
compel  the  attendance  of  absent  members."  No  provision  is 
made  as  to  the  manner  in  which  the  times  for  the  holding  of 


"•»",■,,' 


STATE  V.  KANTLER. 


nsa 


t  TO  DISTRICTS 
ordinance  pro- 
H)t)sing  certain 
VHtrii-ting  it  to 
yor,  considered 
tion,  but  other- 

t  of  the  uncon- 
desi>;iiatiiiK  the 
ized  by  license— 

),  sellinK  intox- 
t  a  license,  con- 
nse. 

nicipal  Court. 

le  state, 
.t. 

ton  a  prosocu- 
cnse.  in  viola- 
The  ordinance 
s  amended  in 
idant  eontests 
ted:  (1)  The 
ceause  its  first 
nnon  council; 
rid  void,  antl  it 

ch  did  not.  in 
y'  amended  the 

ional  featm-cs; 

)its  the  sale  of 
districts,  ami 

-)ne  outside  of 

ttellinfj  iritlin'it 

),  subch.  4,  sec. 
ting-s,  and  the 
.  .  It  shall 
have  power  to 
\o  provision  is 
the  holding-  of 


the  stated  meetings  of  the  council  shall  be  prescribed.    At  a 
legal  meeting  of  the  council  on  the  2.Sd  of  April,  1884,  a  formal 
resofution  Avas  adoi)ted,  designating  the  second  and  fourth 
Saturdays  of  each  month  as  the  times  for  holding  future 
stated  meetings.    This  resolution  was  approved  by  the  nuivor, 
and  published  as  prescribed  liy  the  charter  in  respect  to  all 
resohttlons  and  ortluKoxyH.     At  a  regular  meeting,  on  the  3(ith 
of  April,  1S84,  by  a  simple  mott'on,  then  passed,  the  council 
designated  the  first  and  third  Wednesdays  of  each  month  for 
the  holding  of  future  stated  meetings.    The  amendatory  ordi- 
nance was  first  introduced  and  read  at  a  meeting  held  on  the 
first  Wednesday  of  .June,  1884  (June  4th).    The  legality  of 
this  meeting,  as  a  stated  meeting,  is  called  in  question.    In 
the  absence  of  any  provision  designating  the  manner  in  which 
the  times  for  hohling  stated  meetings  of  the  council  should  be 
fixed,  the  city  council  had  the  power  of  determination.     It  re- 
quired only  such  action  on  their  part  as  expressed  the  will  of 
that  body.     No  more  was  recjuired  than  the  adoption  of  a  sim- 
ple motion.     Approval  by  the  mayor  and  publication  Avere 
both  unnecessary,  and  added  n(jthing  to  the  force  of  the  adop- 
tion of  the  resolution  by  the  council.     The  council  was  in  no 
measure  divested  of  the  ])ower  of  determination  which  the 
charter,  in  effect,  con  fere  solely  upon  it,  by  the  fact  that  the 
mayor  had  formally  approved  its  first  action  in  the  premises; 
nor  did  the  fact  that  the  will  of  the  council  had  been  expressed 
in  the  foi-m  of  a  resolution,  and  had  been  published,  render 
necessary  that  in  all  subsequent  action  taken  by  tha^  body  the 
same  formalities  should  be  observed.    The  meeting  of  J  unc  4th 
Avas  therefore  a  legal  stated  meeting  of  the  city  council. 

2.  The  principal  groutul  upon  which  it  is  claimed  that  the 
ordinance,  as  amemled,  is  void,  rests  upon  the  fact,  declared  by 
this  court  in  In  reWlhon,  ;>2  Minn.,  145,  that  section  9  of  the 
original  ordinance  Avas  unconstitutional,  in  that  it  delegated 
to  the  mayor  the  duty  of  designating  the '"active  patrol  dis- 
tricts," outside  of  Avhich  it  was  in  effect  declared  by  the  ordi- 
nance that  the  selling  of  liquor  should  not  be  authorized  by 
license.  It  is  contended  that,  section  9  of  the  original  ordi- 
nance being  void,  the  attempted  amendment  of  it  by  an  ordi- 
nance in  terms  striking  out  that  section,  and  in  place  thereof 
declaring  the  territory  Avhich  should  constitute  the  "patrol 


684 


AMERICAN  CRIMINAL  REPORTS. 


ii'i  >■  'i 


districts,''  was  also  void.  It  may  be  conceded,  without  consid- 
eration, that  if  the  entire  original  ordinance  had  been  void, 
either  because  of  some  defect  in  the  mode  of  its  enactment,  or 
from  any  other  cause,  the  mere  amendnumt  of  section  9  would 
not  have  been  effectual  to  create  a  valid  and  enforceable  ordi- 
nance. Beyond  this  the  authorities  cited  by  appellant  do  not 
go.  But  that  the  invalidity  of  section  9  had  not  the  effect  to 
render  invalid  the  whole  ordinance  is  appar«?nt  frum  a  con- 
sideration of  the  terms  of  the  ordinance,  and  from  the  obvious 
intention  of  the  city  council. 

The  ordinance  was  enacted  pursuant  to  legislative  authority 
(Sp.  Laws,  ch.  76,  subch.  4,  sec.  5)  to  "license  and  i-egulate 
.  .  .  all  persons  vending  .  .  ."  intoxicating  liquors,  and 
to  "restrain  any  person  from  vending  .  .  .  unless  didy 
licensed  by  the  city  council."  We  will  indicate  in  general 
terms  the  principal  provisions  of  the  ordinance.  Section  1  of 
the  ordinance  enacts  that  no  person  sliall  sell,  etc.,  within  the 
city  "  without  first  having  obtained  a  license  thei'efor  in  tlie 
manner  herein  provided."  Section  2  designates  several  classes 
of  persons  to  whom  it  is  declared  that  no  licenses  shall  be 
granted,  such  as  minors,  those  who  have  bei-n  convicted  of 
violations  of  the  ordinance  or  have  had  a  license  revoked, 
those  who  intend  to  carrv  on  the  business  as  awuts  for  other 
persons  or  within  a  prescribed  distance  of  u  ])ublic  school 
building,  etc.  (subdivision  9j,  those  who  intend  to  carry  on  the 
business  "outside  of  those  districts  in  said  city  which  shall 
hereafter  be  designated  and  known  as  active  patrol  districts, 
to  be  designated  as  hereinafter  recjuired."  Section  3  is  to  the 
effect  that  any  person  desiring  a  license  shall  make  an  affida- 
vit stating,  among  other  things  specified,  his  name,  age  and 
place  of  residence,  the  exact  place  where  he  proposes  to  cany 
on  the  business,  and  whether  he  pro|)oses  to  conduct  it  for 
himself  or  as  agent  for  another,  whether  he  has  been  convicted 
of  a  violaUon  of  the  ordinance  or  has  had  a  license  revoked, 
whether  his  place  of  business  is  to  be  within  the  prescribed 
distance  from  any  public  school  building,  etc.,  and  (subdivision 
10)  whether  or  not  the  proposed  place  of  business  is  within 
those  districts  which  have  been  duly  <lesignated  as  active  patrol 
districts.  Section  4  requires  the  filing  of  this  affidavit  and  of 
a  prescribed  bond.     Section  8  requires  the  payment  of  a  pio- 


'S-!l 


STATE  V.  KANTLER. 


585 


thout  consid- 
(l  been  void, 
enactment,  or 
•tion  9  would 
>rceable  ordi- 
sllnnt  do  not 
t  the  etTcct  to 
,  from  a  con- 
m  the  obvious 

tive  authority 
and  regulate 
ng  liquors,  and 
,     unless  duly 
Lte  in  general 
Section  1  of 
itc.,  within  the 
therefor  in  the 
;  several  classes 
censes  shall  be 
n  convicted  of 
tense  revoked, 
n-ents  for  other 
public  school 
,o  carry  on  the 
ty  which  shall 
>atrol  districts, 
ion  3  is  to  the 
nake  an  aflida- 
naine,  age  and 
Lposes  to  carry 
[conduct  it  for 
been  convicted 
license  revoked, 
the  prescribed 
nd  (subdivision 
iness  is  within 
as  active  patrol 
ffidavit  and  of 
raent  of  a  pre- 


scribed license  fee.  Section  9  delegates  to  the  mayor  tie  duty 
of  designating  tlie  active  patrol  districts,  which  designation  is 
to  be  submitted  to  the  city  council  for  its  apj)rovid.  No  time 
is  prescribed  when  or  within  which  such  designation  shall  bo 
made.  Section  10  provides  that  every  saloon  and  the  bar  of 
every  inn,  and  other  jAacos  where  liquors  are  sold  by  the  glass, 
shall  be  closed  on  Sundays,  and  on  state  and  city  election  days, 
and  forbids  the  sale  of  spirituous  liquors  on  these  days;  forbids 
the  sale  to  minors  or  habitual  drunkards;  declares  that  gam- 
bling shall  not  be  permitted  in  places  where  liquor  is  sold,  and 
that  prostitutes  and  persons  of  evil  name  shall  not  be  employed 
in  or  allowed  to  frequent  such  places;  forbids  the  sale  of  liquors 
during  certain  hours  of  the  night,  and  imposes  other  restric- 
tions and  rogulati(ms.  Section  H  imposes  a  penalty  for  the 
violation  of  any  of  the  provisions  of  the  ordinance. 

It  is  apparent  from  the  terms  of  the  enactment  that  the  city 
council  intended  it  to  be  effectual  to  confine  the  traflic  in  spir- 
ituous liquors  within  the  limits  of  the  city  to  those  who  should 
be  specially  authorized  b}-  license  to  engage  in  it,  and  to  ordain 
certain  conditions  with  respect  to  the  granting  of  licenses,  and 
certain  regulations  and  restrictions  pertaining  to  the  business. 
It  Avas  contemplated  as  one  means  of  regulating  the  traffic, 
even  in  the  hands  of  licensees,  that  it  should  be  confined  to  de- 
fined districts  of  the  city,  to  be  specifically  designated,  and  it 
was  with  a  view  to  the  accomplishment  of  this  i)urpose  that 
section  9  was  enacted,  providing  for  the  appointment  of  those 
districts  by  the  mayor.     The  enactment  of  sul)division  9  of  sec- 
tion 2,  and  subdivision  10  of  section  3,  was  dii'ected  to  the  same 
end.     These  subdivisions  were  so  intinuitely  related  to  the  pro- 
visions of  section  9,  that,  in  the  absence  of  any  otlier  ordinance 
defining  the  patrol  districts,  they  coiUd  l)e  operative  only  in 
connection  with  that  section.     The  provision  made  by  section  9 
for  determinino;  the  districts  within  which  it  was  intended  to 
confine  the  traffic  being  void,  the  subdivisions  just  referred  to 
were  necessarily  inoperative,  and  incapable  of  enforcement. 
Thus  the  purpose  of  the  council,  of  local  restriction,  which  was 
sought  to  be  carried  into  effect  by  those  divisions  of  the  ordi- 
nance, failed  of  accomplishment.    But  this  fact  affords  no  suf- 
ficient reasons  for  a  judicial  declaration  that  the  remaining 
portion  of  the  enactmeat  should  not  be  enforced.     The  pro- 


586 


AMERICAN  CRIMINAL  REPORTS. 


'.t:i: 


hibition  against  selling  liquors  within  the  city  limits  without  a 
license  is  distinct,  absolute,  unqualiliecl  and  apparently  in  no 
manner  dependent  uj)on  tho  provisions  with  respect  to  local 
restriction.  The  same  may  be  said  of  the  other  portions  of 
the  ordinance  which  prescribe  conditions  witli  res))ect  to  the 
granting  of  licenses,  and  impose  numerous  regulations  and 
restrictions  concerning  licensees  and  their  lousiness. 

Disregarding  as  invalid  and  inoperative  those  provisions  of 
the  ordinance  above  referred  to,  which  are  directed  to  the  end 
of  local  restricti<m,  the  remainder  nuiy  stand  as  a  complete 
ordinance,  clearly  expressing  the  intention  of  the  legislative 
body  enacting  it,  and  cajjable  of  being  carried  into  full  etfect. 
It  is  not,  either  in  the  nature  of  its  provisions  or  in  its  struct- 
ure, made  dependent  upon  section  0.  The  provisions  and  the 
purposes  of  the  main  body  of  the  oi'dinance,  and  of  that  i)or- 
tion  which  is  invalid  ami  not  enforceable,  are  distinct  and 
separable;  the  failure  of  the  latter  does  not  modify  tho  opera- 
tion or  affect  the  construction  of  that  which  renuiins.  Thcio 
is  no  reascm  apparent  to  justify  a  court,  in  the  exercise  of 
its  duty  of  construing  and  enforcing  the  law,  in  the  conclusion 
that  the  city  council  wouhl  not  have  enacted  the  ordinance 
prohibiting  the  sale  of  intoxicating  liquors  without  a  liceiist'. 
and  im|)osing  the  regulations  and  restrictions  there  declaicd, 
except  in  connection  with  the  provisions  of  local  restriction. 
That  the  city  council  did  enact  such  an  ordinance,  and  that  its 
provisions  wei'e  not  apparently  in  any  way  dependent  upon  the 
accomplishment  of  the  j)uri)ose  of  hx-al  restriction,  is  sullicicnt 
to  indicate  our  duty  to  give  efl'ect  to  the  law.  As  we  const luc 
the  oi'dinance,  the  case  is  quite  within  the  principles  whicli, 
accoi'ding  to  the  authorities,  sustain  the  enactment,  except  only 
as  to  those  provisions  which  were  in  themselves  void,  ('imi.r. 
Jlitrhlnyn,  T)  (ii'ay, 482;  tSlate  v.  Mlurhr,  25  Conn.,  2'.M»;  (jmulnd 
V.  C'oi'>i/'.s,  47  >«'.  v.,  <!08,  (315,  017;  J*('ojt/e  v.  />/vV/_y.v,  5o  X.  V., 
653,  5«;5,  5(it;;  Mai/or  v.  JM-lwi't,  32  .Md.,  oO'.*;  Ltpirl,  v.  Tim 
K'ononnj,  27  Wis.,Ol>;  Tic/-nanv.  lllnlvi',  lo2  U.  S.,  123;  Cooley, 
Const.  Lim.,  212. 

There  is  another  reason  contributing  to  the  conclusion  tluat 
the  city  council  are  to  be  regarded  as  having  intended  that  the 
ordinance  should  go  into  effect  independently  of  those  provis- 
ions becoming  operative  which  were  designed  to  restrict  the 


li 


STATE  V.  KANTLER. 


687 


its  without  a 
arontly  in  no 
pcft  to  local 
r  pt)rtions  of 
i'S])ect  to  tho 
filiations  and 

ss. 

)  provisions  of 

ted  to  the  end 
IS  a  coni\)letc 
the  le«j;islativc 
nto  full  etfoct. 
r  in  its  struct- 
isions  and  tho 
id  of  that  \wv- 
•e  distinct  and 
idify  the  o])era- 
aniains.    Thoro 
the  exercise  of 
I  the  conclusion 
the  ordinance 
thout  a  license, 
there  declaicil, 
)cal  restricti(»n. 
ice,  and  that  its 
■ndcnt  upon  tlic 
ion,  is  sullicient 
As  \vc  construe 
rinciph's  which, 
ent,  except  only 
s  void.     Cotii.r. 
in.,  2W^\  (ronlo'i 

>/'/f/f/s',  •'»'•  ^-   '^" 

;  L>/ti<-/i  r.  T/tc 
S.,i2;i;Cooloy, 

conclusion  that 
litended  that  tho 
I  of  those  provis- 
B   to  restrict  the 


husincss  to  defined  limits  within  the  city.  By  its  terms  the 
ordinance  was  to  "take  effect  and  he  in  force  from  and  after 
its  publicaticm;"  while  the  time  when  the  restriction  of  the 
tratllc  to  delincd  districts  should  hoconie  etrective  was  not  lixod, 
hut  was  left  to  depend  upon  the  future  action  of  the  nuiyor, 
and  the  approval  of  that  action  by  the  city  council. 

Our  conclusion  is  that  the  unconstitutionality  of  section  It 
resulted  only  in  rendering  tho  ordinance  ineirectual  as  to  the 
appointment  of  patrol  districts,  and  the  restricting  of  tho  busi- 
ness by  licensees  to  such  districts,  aiul  that  as  to  the  rest  tho 
ordinance  was  valid.  This  being  so,  the  amendment  in  (pios- 
tion  was  etfectual  which  enacted  that  section  9  should  bo  stricken 

I  out,  and  properly  designated  certain  portions  of  the  city  as 

active  patrol  districts,  and  so  amended  subdivision  U  of  section 
2  as  to  make  it  conformable  to  the  change  thus  ell'octcd.  The 
ordinance  was  (itlv  entitled  "An  ordinance  to  license  anil  refill- 
late  all  perscms  vending,"  etc. 

3.  Under  the  ordinance  as  amended  tho  defendant  was  prop- 
erly charged  and  convicted  of  the  offense  of  .si//!ihj  irithnnf  a 
b'censi'.     The  restriction  of  the  business  to  delinod  districts 
within  the  city  is  a  ])rop(M'  rKjnhit'ion  of  the  tratUc  ( ///  /v  117/- 
son,  32  ^linn.,  1  \'^),  which  all  licensees  may  be  ic((uired  to 
observe.     As  a  means  of  securing  conformity  with  this  regula- 
tion, a])]>licants  for  license  are  rei[uired,  among  other  things,  to 
state  whether  or  not  the  place  whore  they  intend  to  carry  on 
the  business  is  within  the  now  pi'o[)erly  designated  districts, 
and  if  it  thus  appears  that  the  a|tplicant  intends  to  <lisregaid 
the  restriction  and  to  sell  outside  of  those  limits,  it  is  declared 
in  elfect  that  no  license  shall  in  such  case  be  granted.     The 
effect  of  this  is  not  to  render  ino|)orativo,  or  im[)ossible  to  be 
complied  with,  the  requirement  that  all  persons  who  would  en- 
gage in  the  business  Avithin  the  city  shall  procure  a  license 
therefor.     This  part  of  the  ordinance  prevents  from  obtaining 
a  license  only  such  persons  as  refuse  to  comi)ly  with  the  regu- 
lation ordaintul  with  reference  to  tho  places  where  the  business 
may  be  cari'ied  on.     Selling  without  a  license  is  within  the 
distinct  prohibition  of  the  enactment,  and  it  is  not  material 
that  no  license  could  have  been  ])rocured  authorizing  the  busi- 
ness to  be  carried  on  at  that  place  within  the  city  where  the 
sale  charged  was  made.     State  v.  Lanydoii,  31  Minn.,  316. 


588 


AMERICAN  CRIMINAL  REPORTS. 


Tiiis  decision  is  not  opposed  to  that  in  State  v.  Ilanley,  25  Minn., 
429,  relied  upon  by  the  appelhint.  That  case  is  not  applicable 
as  authority  here.  See  comment  upon  that  case  in  State  v. 
Zatigdon,  supra.     Order  and  judgment  allirmed. 


State  v.  Mace. 

(76  Maine,  64.) 

Perjurt:  Indictment  —  Statutory  form,  when  insufficient. 

1.  Insufficiency  of  indictment.— An  indictment  in  whicli  the  defendant 

is  charged  with  liaving  committed  the  crime  of  perjury  "by  falsely 
swearing  to  material  matter  in  a  writing  signed  by  liim,"  is  insufli- 
cient,  even  after  verdict  of  guilty. 

2.  Same  — Must  show  that  a  ckime  ii.\s  been  committed.— The  legis- 

lature cannot  make  valid  and  suflicient  an  indictment  in  whicli  Uic 
accusation  is  not  set  forth  with  suilicient  fullness  t()  enable  the  accused 
to  know  with  reasonable  certainty  what  tlie  matter  of  fact  is  whicli 
he  must  meet,  and  enable  the  court  to  see,  without  going  out  of  the 
record,  that  a  crime  hiis  been  committed. 
8.  Same. —  The  form  of  an  indictment  for  perjury  prescribed  in  R.  S.,  cli. 
122,  sec.  5,  is  not  sufficient  to  meet  the  requirements  of  the  constitu- 
tion. 

On  exceptions. 

George  P.  Diitton,  county  attorney,  for  the  state. 
H.  D.  lladloek,  for  tiie  defendant. 

Walton,  J.  The  defendant  is  charged  with  having  com- 
mitted the  crime  of  perjury  "  by  falsely  swearing  to  material 
matter  in  a  writing  signed  by  him."  The  indictment  makes 
no  mention  of  the  character  or  purpose  of  the  writing.  'Sur 
does  it  state  what  the  matter  falsely  sworn  to  was.  Nor  dot-s 
it  contain  any  averments  which  will  enable  the  court  to  detoi'- 
mine  that  the  oath  was  one  authorized  by  law.  The  question 
is  whether  such  an  indictment  can  be  sustained.  We  think  it 
cannot.  It  does  not  contain  sulticient  matter  to  enable  tlic 
court  to  render  an  intelligent  judgment.  The  recital  of  facts 
is  not  sulKcient  to  show  that  a  crime  has  been  committed.  All 
that  is  stated  may  be  true,  and  yet  no  crime  have  been  com- 
mitted.    The  character  of  the  writing  is  not  stated,  nor  its 


i.f  4- 


''PP'' 


STATE  V.  MACE. 


589 


11%,  25  Minn., 
Qot  applicable 
se  in  State  v. 


sufflcient. 

ich  the  defendant 
irjnry  "by  falsely 
y  him,"  is  insutti- 

TTED.—  The  k'gis- 
lent  in  which  tlu' 
['liable  the  accusi'd 
I-  of  fact  is  whicli 
t  going  out  of  the 

•ribed  in  R.  S..  di. 
s  of  the  constitii- 


tate. 


li  having  com- 
UiT  to  material 
lictnient  makes 
3  writing,     ^'or 
was.     Nor  does 
court  to  detei'- 
Tiie  question 
(I.     We  tliink  it 
to  enable  I  lie 
recital  of  facts 
committed.    All 
lave  been  com- 
t  stated,  nor  its 


purpose;  nor  the  use  made,  or  intended  to  be  made,  of  it.  For 
aught  that  appears,  it  may  have  been  a  voluntary  affidavit  to 
the  wonderful  cures  of  a  quack  medicine.  Such  an  affidavit, 
as  every  lawyer  knows,  could  not  be  made  the  basis  of  a  con- 
viction for  perjury.  In  the  language  of  our  statute  defining 
perjur}',  it  is  only  when  one  who  is  recjuiredto  tell  the  truth  on 
oath  or  affirmation  lawfully  administered,  wilfully  and  con'U])tlv 
swears  or  afiirms  falsely  to  material  matter,  in  a  proceeding 
before  a  court,  tril)unal  or  officer  created  b}'  law,  that  he  is 
guilty  of  perjury.  11.  S.,  cb.  122,  sec.  1.  The  oath  must  be 
one  authorized  or  reciuired  by  law,  to  constitute  perjury. 
Swearing  to  an  extrajudicial  affidavit  is  not  ])erjury.  And 
the  indictment  must  contain  enough  to  show  that  the  oath  was 
one  which  the  law  authorized  or  required,  or  it  will  be  defect- 
ive and  clearly  insufficient,  even  after  verdict;  for  the  verdict 
will  affirm  no  more  than  is  stated  in  the  indictment;  and  if  the 
indictment  does  not  contain  enough  to  show  that  perjury  has 
been  committed,  a  verdict  of  guilty  will  not  aid  it.  AVe  think 
the  indictment  in  this  case  is  fatallv  defective  in  not  setting 
out  either  the  tenor  or  the  substance  of  the  writing  sworn  to 
by  the  accused,  to  the  end  that  the  court  might  see  whether  it 
was  one  in  relation  to  which  perjury  could  be  committed. 

Besides,  the  writing  referred  to  in  the  indictment  may  (and 
it  would  be  strange  if  it  did  not)  contain  more  than  one  state- 
ment in  relation  to  matters  of  fact.  The  grand  jury,  upon  the 
evidence  before  them,  may  have  come  to  the  conclusion  that 
the  statement  in  relation  to  one  of  these  matters  of  fact  was 
false,  and  thereupon  voted  to  indict  the  defendant,  while  the 
traverse  jury,  upon  the  evidence  before  them,  may  have  come 
to  the  conclusion  that  the  statement  in  relation  to  that  matter 
was  true,  but  that  some  other  statement  contained  in  the  writ- 
ing was  false,  and  thereiqum  convicted  the  defendant  of  per- 
jury ■  1  swearing  to  the  hitter  .statement;  and  thus  the  defendant 
wouhl  be  convicted  upcm  a  matter  in  relation  to  which  he  had 
never  been  indicted  by  the  grand  jury.  Surely  an  indictment 
which  will  permit  of  such  a  result  cannot  be  sustained. 

Ti'ue  the  fonn  followed  in  this  case  is  one  established  by  leg- 
islative autboi'ity.  lUit  the  authority  of  the  legislature  in  such 
cases  is  limited.  Tiuloubtedly  the  legislature  may  abl)reviate, 
simplify,  and  in  many  other  respects  modify  and  change,  the 


iwr 


?!'" 


590 


AMERICAN  CRIMINAL  REPORTS. 


forms  of  indictments ;  but  it  cannot  make  valid  and  sufficient 
an  indictment  in  which  the  accusation  is  not  set  forth  with 
sufficient  fullness  to  enable  the  accused  to  know  with  reason- 
able certainty  what  the  matter  of  fact  is  which  he  has  got  to 
meet,  and  enable  the  court  to  see,  without  going  out  of  tlio 
record,  that  a  crime  has  been  committed.  This  the  constitu- 
tion of  the  state  forbids;  and  to  that  instrument  the  legislature 
as  well  as  all  other  tribunals  must  conform.  Tlie  authority  of 
the  legislature  in  this  j)articular,  and  the  extent  to  which  it  may 
go  in  establishing  forms,  has  been  judicialh'  determined  in  this 
state,  and  the  arguments  7>/v>  and  c<m  need  not  bo  repeated 
here.     We  refer  to  State  v.  Lidriied,  47  Maine,  42(>. 

The  common  law  required  indictments  for  perjury  to  be 
drawn  with  great  nicety  and  fullness  —  more  so,  it  is  believed, 
than  the  purposes  of  justice  rctpiiivd, —  and  the  i-esult  was 
that  but  few  such  indictments  proved  to  be  sullicient  when 
subjected  to  a  close  and  sciirching  examination.  To  avoid  tliis 
inconvenience,  the  legislature,  in  IStiS,  enacted  two  forms, 
which  it  declared  should  be  suflicient.  The  firet  related  to 
perjury  committed  by  persons  testifying  orally  before  some; 
court  or  other  tribunal,  and  although  much  bi'iefer  tiian  would 
have  answered  by  the  strict  rules  of  the  common  law,  it  was 
held  sulHcieiit  in  Stat''  v.  Corson,  50  Maine,  K'.T.  The  second 
related  to  perjury  committed  in  sweariiig  to  some  writing  in 
relation  to  which  an  oath  is  authorized  or  recpiired  bylaw: 
and  the  sufficiency  of  this  latter  form  is  now  for  the  flr.st  time 
before  the  law  court  for  consideration;  and,  for  the  reasons 
already  stated,  and  to  bo  found  more  fully  stated  in  the  cast' 
cited  {State  v.  Leat'iied,  47  Elaine,  420),  we  are  forced  to  the 
conclusion  that  it  is  not  sufficient;  that  the  legislature,  in  its 
laudable  desire  to  j)rune  away  the  great  prolixity  of  the  forms 
required  by  the  common  law,  cut  too  deep,  and  did  not  leave 
enough  to  meet  the  requirements  of  the  constitution  of  tli" 
state. 

Exceptions  sustained.    Judgment  arrested. 

Peteks,  C.  J.,  Danforth,  Virgin  and  Liijiucy,  JJ.,  concurred. 


■  f'Ti; 


■■»)ip^ 


and  suificient 
set  forth  with 
V  with  reason- 
he  has  got  to 
ing  out  of  the 
s  the  constitu- 
the  legislature 
le  authority  of 
0  which  it  may 
jrmined  in  this 
ot  be  repeated 

perjury  to  be 
),  it  is  believed, 
the  result  was 
suilicient  when 
To  avoid  this 
ed   two  forms, 
llrst  related  to 
ly  before  some 
pfer  than  would 
nou  law,  it  was 
7.    The  second 
ome  writing  in 
(piired  bylaw; 
)r  the  first  time 
for  the  reasons 
ted  in  the  cast- 
le forced  to  tlu' 
gislaturc,  in  its 
,ty  of  the  forms 
d  did  not  leavf 
ititution  of  til" 


,  JJ.,  concurred. 


STATE  V.  PETERS.  591 

State  v.  Peters. 

(57  vt.,  86.) 

Peiuuky:  Indictment. 

Towns  are  required  by  Btatute  to  eloct  annually  three,  four  or  five  listers, 
who  constitute  a  board,  a  majority  of  which  is  essential  to  legal  ac- 
tion; one  acting  alonw  hiw  no  jurisdiction;  his  acts  would  be  void; 
hence,  an  indictment  charging  a  lister  with  perjury,  in  that  he  had 
violated  his  official  oath,  is  defective  without  allegation  of  the  election 
of  the  requisite  numlwr  of  listers,  and  that  tlu-y  qmlijied  and  acted  as 
»uch. 

Indictment  chai'ging  the  respondent  with  perjury  for  violat- 
ing the  otticial  oath  as  lister.  Heard  on  demurrer  to  the  in- 
dictment, December  term,  1SS;{,  Orange  county,  Rowell,  J., 
presiding.     Demuri'er  overruled. 

A.  M.  Dli-hi/  and  Joint  II.  Wntmn,  for  the  "espondent. 
J.  K.  DaiiiiKj,  state's  attorney,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

Taft,  J.  This  case  was  hoard  ujion  demurrer  to  an  indict- 
ment charging  the  r(>spondent  with  having  viohited  the  oath 
taken  by  him  as  lister  for  the  town  of  Hradford  in  the  year 
1S81.  It  is  alleged  in  the  indictment  that  the  respondent, 
Dudley  K.  Andross,  and  rreston  S.  (Miaml)orlin,  were  duly 
elected  listei's  at  the  annual  March  moetin";  in  that  vcar.  It 
is  not  alleged  that  eithcM*  Andi'ossor  ('haml)erlin  ever  (qualified 
or  acted  as  sucli.  It  is  claimed  that  the  want  of  such  allega- 
tion renders  the  indictment  defective.  Section  •i<ir)S,  Revised 
Laws,  provides  that  towns  shall  choose  annually  three,  four  or 
live  listei's,  and  the  number  so  chosen  have  joint  authority  to 
proceed  in  the  disciharge  of  tluMr  duties  l)y  preparing  the  an- 
nual lists.  The  concurrence  of  a  majoi'ity  of  the  board  is  suf- 
ficient (R.  L.,  sec.  3),  an<l  is  reipiired  in  all  cases.  The  listers 
act  as  a  board;  and  in  order  to  give  them  jurisdiction  of  the 
matters  before  them,  it  is  essential  that  the  requisite  number 
should  be  chosen  and  (pialilied.  If  a  town  chooses  but  one 
lister,  it  is  evident  that  he  alone  has  no  authority  to  act  in,  or 
jurisdiction  of,  the  mattoi's  whicli  should  properly  come  be- 
foi'e  the  board.     And  until  the  legal  number  of  listers  is 


592 


AMERICAN  CRIMINAL  REPORTS. 


ln>! 


duly  chosen  and  qualified,  one  member  cannot  commit  the 
crime  of  perjury  by  violating  the  oath  required  to  be  taken. 
His  acts  woulil  be  null  and  void  in  every  res})ect.  "We  are  not 
called  upon  to  decide  what  the  effect  of  electing  only  a  majui- 
part  of  the  board  would  be,  as  there  is  no  allegation  that  any 
one,  save  the  respondent,  ever  qualified  or  acted  as  lister.  It 
is  an  essential  requisite  in  every  indictment,  that  all  matters 
material  to  constitute  the  particular  crime  chai-ged  should  be 
positively  and  distinctly  alleged.  In  State  v.  J'o.v,  15  Yt.,  22, 
the  respondent  was  indicted  under  a  statute  imposing  a  pen- 
alty u[)on  each  pei'son  of  a  company  of  jilayers  who  should 
exhibit  tragedies,  etc.  There  was  no  allegation  that  Fox  was 
one  of  a  company;  and  the  court  said  that  no  single  individ- 
ual unconnected  with  others  could  commit  the  offense,  and  ad- 
judged the  indictment  insufficient.  The  election,  (jualification 
and  action  of  a  board  of  listers — an  essential  ingredient  con- 
stituting the  offen.se  —  not  being  alleged,  the  indictment  is 
defective.  The  judgment  of  the  county  court  is  I'cversed,  the 
demurrer  sustained,  the  indictment  adjudged  iusuificient  and 
the  resijondent  discharged. 


Pkoplk  v.  Mess. 
(65  Cal.,  174.) 


Practice:  Appeal  —  Order  Jiving  time  of  —  Sentence  before  time  provided 

by  law. 

An  Older  of  court  fixing  the  time  of  sentence,  after  conviction  of  felony, 
is  not  an  appealable  order,  and  an  exception  talien  to  such  order,  be- 
cause it  provided  for  a  sentence  before  tlie  time  provided  bylaw,  is  not 
reviewable  in  the  supreme  court. 

Appeal  from  the  Superior  Court  of  the  City  and  County  of 
San  Francisco. 

F.  A.  Hornhlower,  for  appellant. 
AttonK'H-Gcneml  Mai'shall,  for  respondent. 

lloss,  J.  A  verdict  finding  the  defendant  guilty  of  the  crime 
of  forgery  was  returned  and  entered  in  the  superior  court  of 
the  city  and  county  of  Sau  Francisco  on  the  25th  day  of  Octo- 


PEOPLE  V.  MESS. 


593 


coniiiiit  the 
to  be  taken. 

"VVe  are  not 
only  a  major 
ion  that  any 
as  hster.     It 
t  all  niattei's 
fed  should  be 
«,  15  Yt.,  22, 
iposing  a  pen- 
's wlio  should 
that  Fox  was 
inu'le  Individ- 
Tense,  and  ad- 
i,  (jualification 
ilii-edient  con- 
indictment   is 
s  reversed,  tlie 
isufflcient  and 


ire  time  provided 


viction  of  felony, 
1)  such  onh'f,  bi'- 
iledbylaw,  isiitit 


and  County  of 


ty  of  the  crinui 
)erior  court  of 
h  dav  of  Octo- 


ber, 1SS3.  The  court  thereupon  appointed  October  2i,  1SS3, 
as  the  time  for  prononncin<,'  the  sentence  of  tlie  law,  and  on 
tlie  said  2Tth  day  of  October  sentenced  the  defendant  to  im- 
prisonment in  the  state  prison  at  San  Qnentin  for  tlic  term  of 
seven  years.  It  is  claimed  by  counsel  for  appellant  that  the 
sentence  so  imposed  was  contrary  to  law,  in  that  two  days  had 
not  elapsed  between  the  rendition  of  the  verdict  and  the  pro- 
nouncing of  sentence. 

Section  1191  of  the  Penal  Code  reads: 

"  After  a  plea  or  verdict  of  guilty,  or  after  a  verdict  against 
the  defendant  on  the  plea  of  a  former  conviction  or  acquittal, 
if  the  judgment  be  not  arrested  or  a  new  trial  granted,  the 
court  must  ai)point  a  time  for  pronouncing  judgment,  which,  in 
cases  of  felony,  must  be  at  least  two  days  after  tlie  verdict,  if 
the  court  intend  to  remain  in  session  so  long;  but  if  not,  then 
at  as  remote  a  time  as  can  reasonably  be  allowed." 

The  intention  of  the  '"court"  is  known  to  the  judge  only, 
and  there  is  no  mode  by  which  avc  can  say  he  did  not  intend 
to  remain  in  session  "so  long."  It  is,  perhaps,  for  this  reason 
that  no  exception  is  allowed  by  statute  to  the  order  fixing  the 
time  for  sentence.  Penal  Code,  ^^  1172,  1173.  No  such  ex- 
ception being  allowed,  the  order  is  not  reviewable  here.  It 
should  bo  added,  however,  that  there  was  no  objection  on  the 
part  of  the  defendant  to  the  shortness  of  time,  when,  on  the 
2r)th  of  October,  the  court  below  appointed  the  27th  for  pro- 
nouncing sentence;  nor  -was  there  any  such  objection  made 
when,  on  the  day  appointed,  the  defendant  was  called  for 
sentence.  Had  defendant  made  it  appear  to  the  court  that  the 
time  appointed  was  less  than  two  days  after  the  rendition  of 
the  verdict,  and  tlie  court  intended  to  remain  in  session  so  long, 
the  time  for  pronouncing  sentence  would  doubtless  have  been 
iixed  at  least  two  days  after  the  rendition  of  the  verdict. 

Our  conclusion  is  that  the  judgment  of  October  27,  1883,  is 
a  valid  judgment,  and  that  the  defendant  is  legally  in  custody 
under  it.  It  results  that  the  proceedings  sul)sequently  taken  in 
the  superior  court,  looking  to  a  resentence  of  the  defendant, 
were  void. 

Judgment  of  October  27,  1883,  affirmed,  and  judgment  of 
November  13,  1883,  reversed. 

MoKee,  J.,  and  McKinstry,  J.,  concurred. 
Vol.  V  — 38 


i;'!«;;-i.«.<ft¥? 


59-1  AMERICAN  CRIMINAL  REPORTS, 

State  v.  Kepper. 

(65  Iowa,  743.) 

Practice:  Burglary  —  Examination  of  witnesHCS  not  before  grand  jury  — 
Evidence  —  Identity  —  Guilty  knuiclcdgc  —  Proof  of  other  crime, 

1  '^::asiinatiox  of  witnesses  not  befoue  grand  ji-ry.— Dof(>n(laiit 
'  .as  indicted  for  burglary  by  tlie  gi-and  jury,  without  examination  of 
V  nesses,  but  on  minutes  of  testimony  given  before  a  committing  mag- 
istrate on  preliminarj'  examination,  which  were  returned  to  the  dis- 
trici  court  without  the  certificate  roiiuired  bj-  Code,  t?  ISJil,  and  the 
distri"  t  '"^orney  failed  to  serve  defendant  with  any  notice  stating  the 
names  oi  the  \\  itnesses  wliom  he  would  examine  in  support  of  the  iii- 
dictmeiit,  and  tlie  substance  of  tlie  testimony  they  would  give.  On 
the  trial  defendant  objected  to  the  examination  of  the  witnesses  bo- 
cause  they  had  not  been  sworn  and  examined  before  the  grand  jury, 
and  the  paper  purporting  to  be  the  minutes  of  the  evidence  was  not 
authenticated  by  the  certificate  of  the  magistrate.  IIrI(f,  that  the  state 
w{  ,  entitled  to  examine  the  witnesses,  in  suj>[>ort  of  the  indictment. 

2.  Evidence  of  identity  —  Res  (jest^e. — There  being  sufficient  evidence 

to  identify  defendant  ivs  the  person  who  broke  into  the  witness'  house, 
the  admission  of  what  was  said  by  defendant  to  procure  an  entriince 
was  ja-oper  as  part  of  the  res  gentn'. 

3.  Knowledge  of  defendant  of  money  being  keit  in  house  bur- 

glarized.—  On  a  tiial  for  burg'ary,  evidcnc(3  that  the  defendant  knew 
that  there  was  money  in  the  house  broken  into  is  admissible,  and  may 
be  considered  Viy  the  jury  in  dett>rminiiig  whether  he  was  the  per.soii 
who  broke  and  entered  it. 

4.  Proof  of  other  crime. —  When  the  fact  is  proven  tliat  the  particular 

crime  charged  in  the  indictment  was  conuuitted  by  some  pei-son,  evi- 
dence whi<,'h  tends  to  identify  the  accused  as  the  person  who  conuuit- 
ted it  is  relevant  to  the  issue,  and  is  atlmissible,  even  thongh  it  tends 
also  to  prove  the  commission  of  a  distinct  crime  from  tluat  charged  in 
the  indictment,  or  a  different  motive  fnnn  that  alli'ged. 

Appeal  from  Henry  District  Court. 

Tlie  defoiulant  was  convicted  of  the  crime  of  burf^lary,  ajid 
sentenced  to  a  term  of  imprisonment  in  the  penitentiary,  and 
from  tiiis  judgment  he  ai)peals. 

L.  G.  cfe  L.  A.  Palmer,  for  defendant. 

Smith  McP/ier.io)i,  attorne3'-general,  for  tlie  state. 

Reed,  J.  I.  There  was  a  preliminary  examination  of  the 
defendant  on  the  charge,  and  he  was  held  to  answer  the  same. 
The  papers  relating  to  the  examination,  which  were  rcturncil 
by  the  magistrate  to  the  district  court,  were  at  the  proper  time 


STATE  V.   KEPPER. 


5ftr 


yre  grand  jury  — 
other  criinc. 

CKY. —  Dofondaiit 
it  oxamination  of 
,  committing  majr- 
im-ned  to  the  ais- 
le, g  •1-24'^,  and  Uv 
notice  stating  tin' 
suppovt  of  the  iii- 
•  would  give.     Oil 
f  tho  Avitnessos  bo- 
re the  grand  jury. 
.  evidence  was  not 
i/,7(?.  that  the  stato 
i  the  inthctment. 
sufHcicnt  evidence 
the  witness'  house, 
n-ocure  an  entrance 

PT  IN  HDUSF-  nru- 
the  defendant  knew 

ilinissihle,  and  may 
1-  he  was  the  person 

that  the  particxilar 
)y  some  person,  evi- 

'i-son  who  connnil- 
en  thongh  it  tomls 
■oni  that  charged  in 
'ged. 


.)f  l)iirglary,  and 
>cnitentiiivy,  autl 


stivto. 

Linination  of  the 
answer  the  same, 
•h  were  retuvnod 
,t  the  proper  tunc 


■submitted  to  the  grand  jury.    Among  those  papers  was  what 
pur|)ortcd  to  be  the  minutes  of  the  (n-idence  given  by  the  wit- 
nesses who  were  examined  on  the  preliminary  examination, 
but  no  certificate  of  tlie  magistrate  to  the  truth  of  the  minutes 
was  attached  tliereto,  as  required  by  Code,  ^  4242.    The  wit- 
nesses were  not  called  before  the  grand  jury  for  examination, 
but  the  indictment  was  found  on  the  minutes  of  evidence,  and 
the  district  attorney  did  not  serve  the  defendant  with  any 
notice  stating  the  names  of  the  witnesses  whom  he  would  ex- 
amine in  support  of  the  indictment,  and  the  substance  of  the 
testimony  they  AVouUl  give.     On  the  trial  defendant's  counsel 
objected  to  the  examination  of  the  witnesses  in  support  of  the 
indictment,  and  moved  the  court  to  exclude  their  testimony  on 
the  ground  that  they  had  not  been  swoi-n  and  examined  before 
the  grand  jury,  and  the  papers  ])uri)oi'ting  to  be  the  minutes 
of  the  evidence  on  the  preliminary  examination  were  not  au- 
thenticated by  the  certificate  of  the  magistrate.    This  objec- 
tion was  overruled  by  the  court,  and  the  witnesses  were 
examined  and  gave  testimony  in  support  of  the  indictment. 

Before  the  enactment  of  chapter  VW,  Laws  of  the  Eighteenth 
(leneral  Assembly,  an  indictment  could  be  found  only  upon 
evidence  given  by  witnesses  produced,  sworn  and  examined 
before  the  grand  jury,  or  furnished  by  legal  documentary  evi- 
dence. See  section  4273,  Code  of  1873.  But  under  the  pro- 
visions of  that  chapter  the  grand  jury  may  find  an  indictment 
upon  the  minutes  of  evidence  given  by  the  Avitnesses  before  a 
committing  magistrate. 

It  will  be  observed  that  defendant's  objection  raises  no  ques- 
tion as  to  the  })ower  of  the  grand  jury  to  find  the  indictment 
Avithout  calling  the  Avitnesses  and  taking  their  testimony  under 
oath,  Avhen  they  did  not  have  before  them  an  authenticated 
minute  of  the  evidence  before  the  committing  magistrate.  Hut 
the  objection  relates  solely  to  the  right  of  the  state  to  examine 
Avitnesses  m  support  of  the  indictment  Avho  Avere  not  examined 
before  the  grand  jury,  and  Avhen  no  ])roperly  authenticated 
minute  of  their  testimony  before  the  committing  magistrate 
was  before  that  body  Avhen  the  indictment  was  found. 

Section  3  of  chapter  130,  Acts  of  the  Eighteenth  General 
Assembly  (Avhich  is  a  substitute  for  section  4289  of  the  code 
of  1873),  provides  that  when  an  indictment  is  found  on  the 


M- 


590 


AMERICAN   CHIMIN  AL  llEPOUTS. 


minutes  of  evidonce  of  witnesses  before  the  comniittinff  maffis- 
trate,  a  brief  minute  of  such  evidence  sliall  bo  written  out  and 
returned  by  the  ^rand  jury  with  the  indictment.  Section  4275 
provides  that  a  like  5r.ii1r.tc  of  the  testimony  of  witnesses  who 
liave  been  examined  before  the  grand  jury  shall  be  returned  with 
the  indictment;  and  section  421*2  provides  that  these  minutes 
shall  be  filed  by  the  clerk  of  the  court  and  shall  remain  in  his 
office  as  a  record,  and  the  state  is  entitled  on  the  trial  to  examine 
any  witness  in  support  of  the  indictment  wh<j  was  examined 
either  before  the  grand  jury  or  the  committing  magistrate,  and 
whose  evidence  was  considered  bv  the  grand  jurv  in  Jiiulin<r  tlic 
indictment,  and  a  minute  thereof  returned  to  the  court  with  the 
indictment.  When  the  grand  jury  returned  the  indictment 
and  the  minutes  of  the  evidence,  and  these  were  filed,  the  rec- 
ord thus  m.ide  became  the  legal  evidence  as  to  the  testimony 
on  which  they  acted  in  finding  the  indictment.  It  showed 
that  the  indictment  was  found  on  the  minutes  of  evidence  taken 
before  a  committing  magistrate.  AVhen  the  grand  jury  niturn 
an  indictment  the  law  jwesumes  that  they  had  before  them 
sufficient  legal  evidence  to  warrant  them  in  finding  it.  Tlieio 
is  a  presumption,  also,  that  everything  was  done  in  the  course 
of  the  investigation  which  the  law  directs  the  grand  jui'v  to  do 
before  finding  an  intlictment.  If  witnesses  are  produced  be- 
fore it  for  examination,  the  law  requires  that  their  testimony 
shall  be  given  under  the  sanction  of  an  oath;  and  when  the 
grand  jur}-^  have  i-eturned  a  minute  of  the  testimony  of  wit- 
nesses examined  before  them,  the  presumption  is  that  the  wit- 
nesses were  sworn  and  gave  their  testimony  under  oath. 
Before  finding  an  indictment  on  the  minutes  of  evidence  bel'oie 
the  committing  nuigistrate  they  were  necessarily  required  to 
ascertain  whether  they  had  before  them  a  true  minute  of  tiie 
evidence  given  by  the  witnesses  who  were  examined  on  the  pre- 
liminary examination.  ]f  the  certificate  ju'escribed  by  section 
4242  had  been  attached  to  the  minutes,  this  would  have  been 
competent  and  sufficient  evidence  of  the  fact,  in  the  absence 
of  such  certificate,  however,  they  were  not  precluded  from  all 
inquiry  on  the  subject.  The  fact  might  be  proven  by  other 
evidence;  and,  as  they  acted  in  finding  the  indictment  on  the 
paper  which  they  had  before  them,  the  prcsui  .p/iion  is  that  they 
ascertained  by  satisfactory  and  competent  evidence,  before 


STATE  V.  KEPPER. 


501 


litting  magis- 
I'ittcn  out  and 
Soction  4275 
witnesses  who 
returned  with 
these  minutes 
,  remain  in  liis 
I'ialto  examine 
was  examined 
naffistrate,  and 
,-  in  finding  the 
court  with  the 
the  indictment 
e  filed,  the  rec- 
tlie  testimony 
nt.     It  showed 
evi(hMice  taken 
and  jury  return 
id  before  them 
ding  it.     Tlieri! 
)e  in  the  course 
rand  jury  to  »h) 
re  ])ro(hiced  he- 
leir  testimony 
and  when  the 
stimony  of  wit- 
is  that  the  wit- 
y   under    oath. 
evicUMice  before^ 
rily  reciuired  to 
minute  of  the 
ined  on  the  pre- 
■ihed  by  section 
ouUl  have  been 
In  the  absence 
cUided  from  all 
)rovcn  by  other 
flictment  on  the 
tion  is  that  they 
ividenco,  before 


taking  such  action,  that  it  was  a  true  minute  of  the  evidence 
of  the  witnesses  before  the  committing  magistrate.  Upon  the 
presumptions  arising  from  the  record  the  state  was  entitled  to 
examine  the  witnesses  objected  to  in  supjiort  of  the  indict- 
ment. 

II.  Defendant  is  accused  in  the  indictment  of  bi-eakinjr  and  en- 
tering  the  dwelling-liouse  of  Albert  Johnson,  in  the  night-time, 
with  intent  to  commit  the  crime  of  assault  and  battery.  The 
evidence  shows  that  on  the  night  in  ([uestion  some  person  went 
to  the  house  of  Johnson,  after  he  and  his  wife  had  retired,  and, 
waking  them,  asked  to  be  permitted  to  come  into  the  house  and 
stay  until  morning.  Johnson  arose  and  opened  the  door,  and 
the  person  came  into  the  house,  and  as  Johnson  turneil  to  go  into 
an  adjoining  room  to  get  a  lamp  which  was  burning,  but  turned 
down  low,  he  struck  him  with  a  club  on  the  head,  the  blow 
rendering  him  unconscious.  At  this  ^Irs.  Johnson  arose  and 
got  the  lamp,  and,  turning  it  up,  went  with  it  into  the  I'oom 
Avhere  lier  husband  was.  The  person  who  had  come  into  the 
house  immediately  attacked  her,  and  struck  her  a  blow  with 
the  club,  but  she  seized  hold  of  it  and  succeeded  in  taking  it 
from  him,  when  he  immediately  left  the  house.  Johnson  testi- 
fied that  ho  recognized  defendant  as  the  person  wiio  spoke  to 
him  from  the  outside  of  the  house  by  his  voice,  and  ]\Irs.  John- 
son testified  that  she  saw  the  person  who  came  into  the  house 
by  the  light  of  the  lamp,  and  that  she  knew  it  was  defendant. 
Eoth  witnesses  were  permitted,  against  defendant's  objection, 
to  testify  that  the  person,  while  outside  of  the  house,  in  answer 
to  the  question  of  Johnson,  "Is  that  you,  Kepper?"  replied, 
"  You  bet." 

It  is  very  clear,  we  think,  that  the  whole  of  the  conversation 
between  Johnson  and  the  ])erson  outside  of  the  house  was  ad- 
missible as  constituting  i)art  of  the  res  gcstcv.  It  tended  to 
show  that  Johnson  was  induced  by  fraud  to  open  the  door  of 
the  house  and  permit  the  ])erson  to  enter  it.  This  is  not  denied 
by  counsel  for  defendant,  but  their  complaint  is  that  this  state- 
ment was  permitted  to  go  to  the  jury  as  evidence  to  identify 
defendant  as  the  person  who  nuide  it.  It  is  true  that  the  state- 
ment was  admitted  without  limitation.  The  jury  were  not 
told  that  they  could  not  consider  it  in  determining  whether 


IW'- 


w 
t 


» ^? 


^1 


m- 


508 


A3IERICAN  CRIMINAL  REl'ORTS. 


defendant  was  the  person  who  eonnnitted  the  crime.  But,  in 
our  opinion,  this  omission  affords  (hit'enchmt  no  ground  of  com- 
plaint. If  this  statement  had  been  the  only  evidence  which 
tended  to  i«lentify  defendant  as  the  [)erson  who  committed  tin; 
crime,  the  jury  clearly  wouhl  not  have  been  warranted  in  con- 
victing- him.  lint,  as  stated  above,  both  Johnson  and  his  wile 
testilied  that  he  was  the  person  who  entered  their  house  on  tiiti 
night  in  question.  And  there  are  circumstances,  proven  by 
the  testimony  of  other  witnesses,  which  tend  strongly  to  iden- 
tify him  as  the  criminal.  And  we  think  the  fact  that  the  per- 
son who  committed  the  crime  stated,  before  (  ntering  the  iiousc, 
that  he  was  Kepper,  might  properly  be  considered  by  tlie  jury 
in  connection  with  the  other  circumstances  proven  in  determin- 
ing the  question  of  identity. 

III.  Tlie  court  permitted  the  state  to  introduce  evidence 
tending  to  prove  that  defendant  knew  that  Johnson  h.id 
a  sum  of  money  in  his  house  at  the  time  the  offense  was 
committed.  Ti»e  objection  urged  against  the  admissio-i  of 
this  testimcmy  is  that  it  is  not  relevant  to  any  issue  in  tlic 
case.  It  must  be  admitted  that  the  evidence  did  not  tend 
to  pi'ove  either  the  br(?aking  and  entry  of  the  building,  oi' 
the  intent,  alleged  in  the  iiulictment.  The  averment  in  the 
indictment  is  that  the  buihbng  was  l>roken  and  entered  with 
intent  to  commit  an  ass.iult  and  l>attery,  and  the  evidence 
shows  that  the  person  who  committed  the  crime  went  into  th(^ 
building  armed  with  a  club,  and  committed  an  assault  and  bat- 
tery on  both  Johnson  and  his  wife.  This  shows,  clearly  enough, 
that  ho  had  it  in  mind  when  ho  entered  the  building  to  commit 
that  crime.  liut  it  is  not  reasonable  to  presume  that  this  was 
the  only  intent  with  which  he  entered  the  house.  The  circum- 
stances show  very  clearly,  we  tliink,  that  the  principal  intent 
with  which  the  building  was  entered  was  to  commit  the  crime 
of  larc(my  or  i-obbery.  The  fact,  then,  that  defendant  knew 
tliat  there  was  money  in  the  house  was  a  proi>er  circumstanco 
to  be  considered  by  the  jury  in  determining  whether  he  is  the 
person  who  broke  and  entered  it.  And  when  the  fact  that  the 
particular  crime  charged  in  tiio  indictment  is  proven,  evidence 
which  tends  to  identify  the  defendant  as  the  person  who  com- 
mitted it  is  relevant  to  the  issue,  and  is  admissiblcj  even  though 


STATE  r.  MUIR. 


599 


•iinc.    But,  ill 
I'oinul  of  eoin- 
k'idencc  which 
lomniitled  this 
■rantLMl  in  fon- 
n  and  liis  ^vi|■<' 
ir  h(»use  on  till' 
^cs,  pro  von  by 
i-ongly  to  iilen- 
:t  that  the  i>or- 
'Ving  the  house, 
i-ed  hy  the  jury 
en  in  deteruiin- 

oduce  ovichMirc 
t   .Johnson   hatl 
ho  olTenso  was 
0   admissioM  of 
.ny  issue  in  tlic 
•e  did  not  tend 
ihe  huiUlin^^  or 
A'onnont  in  tlif 
i<l  ontcrod  with 
id  tho  evidence 
10  went  into  tlio 
assault  and  hut- 
clearly  enou<,^li, 
Idinj,^  to  eouimit 
pno  that  this  was 
The  circuni- 
princij>al  intent 
oinniit  the  crinio 
defendant  knew 
>er  circunistanco 
hother  ho  is  tlu^ 
the  fact  that  the 
proven,  evidence 
person  who  coni- 
blc,  even  tliougU 


it  tends  also  to  prove  the  commission  of  a  distinct  crime  from 
that  charged  in  tho  indictment,  or  a  dilfcrent  motive  frinn  that 
alleged. 

AVo  have  foimd  no  error  in  the  record  on  which  the  judf- 
inent  ought  to  he  reversed,  and  it  is  accordingly  alliruied. 

NoTR.— Soo  Sirun  v.  Cmnmnnuraltli,  lOt  Pa.  St.,  218  {S.  ('.,  I  Am.  Cr.  R., 
188),  ami  note,  with  ivfcreuct'  to  principlu  buuriuy  upon  tho  a.luiissiiou  of 
I'videnco  of  other  oirensos. 


Statk  v.  !^[l•IU. 

(33  Kan.,  481.) 

Puactick:  liccciving  verdict  on  Sunilay. 

Criminal  law  and  puockduiie  —  Rkceivino  verdict  on  Sunday  — Ab- 
sence OV  DEFENDANT  AND  COUNSEL  —  PoEI.INCi  JURY.— Thc  jUiy 
ivturned  their  verdict  in  this  easu  on  Sunday,  in  tho  absouoe  of  the 
delendant  and  Ids  counsel,  and  without  either  of  thorn  heing  called  or 
notilied,  and  thc  ,judj;c  thereupon  discharged  the  jiu-y  from  further 
consideration  of  the  case.  At  tho  opening  of  tho  court  on  tho  next  day 
the  dofen(hint  juskod  the  court  to  recall  tho  jury  and  allow  him  the 
opportuiuty  of  having  it  ])olled,  which  application  the  court  denied. 
The  defen<Iant  also  moved  that  the  verdict  hi;  set  aside,  and  stricken 
from  the  (iles;  that  the  Jury  ho  recalled  and  directed  to  return  a  proper 
verdict.  Which  motions,  as  well  as  a  motion  for  a  now  trial,  were 
overruled.  Ifilil.  that  neither  the  defendant  nor  his  counsel,  in  the 
ahscnce  of  notice,  were  hound  to  he  in  attendance  upon  tho  court  ou 
Sunday,  on  the  conung  in  of  the  jury;  and  held,  further,  that  on  ac- 
count of  the  a<'tion  of  the  court  in  discharging  the  jurj%  and  refusing 
to  poll  till?  jury  in  the  presence!  of  the  defendant,  the  judgment  must 
be  reversed,  and  a  now  trial  granted. 

Appe.al  from  Osago  District  Court. 

W.  A.  JohuKton,  attorney-general,  and  Edwin  A.  A^istln,  for 
the  state. 
Ellis  Zt'witi,  for  ai)pellant. 

IIoRTox,  C  J.  An  information  was  filed  against  the  appel- 
lant charging  him  in  three  counts  with  violating  the  prohibit- 
ory liquor  law.  Thc  jury  found  him  guilty  upon  the  third 
count  of  tho  information,  and  returned  a  verdict  of  not  guilty 


^^i' ;  ■ 


t  . 


000 


AMERICAN  CRIMirAL  REPORTS. 


Upon  the  otlicr  counts.  Tie  was  sontoncod  to  pay  a  fino  of  i{;250, 
tlio  costs  of  tlio  prosecution,  and  onliM'od  to  bo  coniniittod  until 
tlio  fine  and  costs  were  paid.  Fi-oin  the  record  it  appears 
that  the  jury  retired  to  consider  of  their  verdict  on  Saturday, 
October  27,  IMS.'J;  that  at  0  o'ch)ck  on  Sunday,  October  28, 
18S3,  tlic  jury  notified  the  jud^e  throu;^h  tlieir  haililF  that  they 
had  agreed  upon  a  verdict.  Thereupon  tliey  wcw  bi-ouglit 
into  the  court  aiul  dehvered  their  vei'diet  to  the  judge  of  the 
court,  in  the  absoiice  of  the  defenchmt  and  his  counsel,  and 
without  their  having-  been  calletl.  The  court  received  the  ver- 
dict and  asked  each  juryman  if  the  verdict  was  his  verdiet, 
and  if  he  was  satisfied  with  the  same,  and,  eacli  lia  ;• 
answered  in  the  alHrniative,  the  court  discharged  them 
further  consideration  of  the  case.  At  the  0])ening  of  tiie  coui't 
on  the  next  (Uiy  i^AIonthiy,  October  2'.>th)  tlie  appellant  asked 
the  court  to  recall  the  jury  and  allow  him  the  ojjportunity  of 
having  tiie  jury  polled  in  his  presence.  The  coui't  denied  the 
application.  The  defendant  also  moved  that  the  verdict  be  set 
aside  and  stricken  from  the  files;  that  the  jiny  be  re  'ailed  and 
directed  to  return  a  proper  verdict; — all  of  which  motions,  iis 
well  as  the  motion  for  a  now  trial,  were  overruled,  and  excep 
lions  taken.  When  a  verdict  is  announced,  the  defendant  may 
require  the  jury  to  bo  polled.  A  ])arty  lias,  in  all  cases,  the 
right  to  know  whether  the  supposed  verdict  is  the  verdict  (jf 
each  juror  or  only  one  of  the  jury,  and  examining-  the  jury  by 
the  poll  is  th  j  only  recognized  means  of  ascertainin*^  whether 
they  were  unanimous  in  their  decision.  This  rig-ht  is  equally 
applicable  to  civil  and  criminal  cases.  The  appellant,  there- 
fore, had  the  legal  I'ight  to  poll  the  jury,  and  he  cannot  be  de- 
prived of  that  right  without  his  consent.  Crim.  Code,  section 
208;  Civil  Code,  section  283;  JI(t(/i/sJ,:av.  Thomas,  0  Xan.,  ir)0; 
Jlunhrs  v.  WdLson,  9  Kan.,  G()S-(>73;  Jamc:^  v.  State,  .5.5  Miss., 
57  (30  Amor,  Hep.,  49(5,  and  notes);  State  v.  llutjlies,  2  Ala., 
102. 

If  it  be  urged  that  the  a])j)ellant  was  voluntarily  absent  from 
the  court-room  on  the  coming  in  of  the  jury,  and  thereby 
•waived  his  right  to  have  the  jury  polled,  it  is  sulUcient  to 
answer  that  neither  he  nor  his  counsel,  in  the  absence  of  notice. 
"were  bound  to  be  in  attendance  upon  the  court  on  Sunday. 
Dies  Dominieus  noii  est  juridicus  —  the  Lord's  day  is  not  u 


ANDEUSON  r.  STATE. 


601 


a  fine  (.f  $250, 
immitteil  until 
nl  it  iii)i)(^iirs 
t  on  Siitui'duv, 
V,  Ootobor  2>. 
liliir  that  tlioy 
wci'i*  bi'<iuglit 

3   jlulgO  of    till' 

s  counsel,  and 
ceivcil  the  vor- 
as  his  venlict. 
,  each  ha  :,' 
;•('(!  thoni 
iijr  of  the  coui't 
|)[)ollant  askeil 
opportunity  of 
r>wi  denied  tht^ 

0  verdict  be  sci 
be  re  'ailed  and 
lich  motions,  as 
ded,  and  exccp 
defendant  may 

1  all  cases,  the 
i  the  verdict  of 
in-i:  the  iurv  bv 
ainint^  whether 
riiiht  is  enualiv 
pi)ellant,  therc- 
10  cannot  be  de- 
n.  Code,  section 
(If),  (5  Kan.,  ir.'.t; 

Sfiifc,  55  Miss.. 
J/injhes,  2  Ala., 

•ilv  absent  from 
y,  and  ther(,'l)y 
is  sutUcient  to 
jsence  of  notice, 
urt  on  Sunilay. 
's  day  is  not  u 


court  day.  AVliilo  it  is  lawful  for  a  court  to  receive  a  verdict 
on  Sunday,  yet,  as  the  parties  have  tho  ri<rht  to  poll  the  jurv, 
the  court  i.unht  not  to  nuike  such  disposition  of  the  case,  "in 
the  absence  of  the  parlies  and  coun.sel,  as  to  prevent  tho  exer- 
cise of  this  right.  S/oNc  V.  JJuW,  ir>  Kan.,  4S8;  yoredl  t. 
J)eva7,  50  ^[o.,  272;  L\l(lv.  Sf„k\  53  Ala.,  402;  Sfnraff  v.  IW 
^>/f',  23  Mich.,  0;5;  James  v.  State,  supra;  1  Bish.  Crini.  I'roc, 
J;',^  270,  272.  rnder  the  circumstances  of  this  case,  as  tho 
appellant  and  his  counsel  wero  both  absent  when  the  jury  re- 
turned their  verdict,  they  .should  have  b.vu  notilied  before  tho 
jury  was  dischar<^ed,  and,  if  not  found,  liie  verdict  might  h=tve 
bi.'en  received,  and  the  jury  requested  to  be  present  at  tho 
opening  of  the  c(jurt  on  the  following  day.  The  jurv  couhl 
have  then  be  jjolled.  On  account  of  the  conclusion  reached, 
it  is  not  important  to  discuss  the  other  (piestions  presented. 
See  the  case  of  State  v.  Jeid'ins,  '.VI  Kan.,  17!t. 

The  judgment  of  the  district  court  will  bo  reversed  and  the 
cause  reuiaiuled  for  a  new  trial. 

(All  the  justices  concurring.) 


Andkksox  v.  State. 

(101  Tiul.,  407.) 

Rape  on  VS'cnASTE  woman:  Indidmrnt  — Venue  — Evukncc  — Attempt 
to  cticapc  —  Ji<'ati(»ial)le  donttt  —  IiintrnctiouH—  MLscoudiid  of  pvune- 
cutor  —  liiijht  of  jury  to  ddermiite  laiv, 

1.  Indictment  —  Cai'Tion  —  Venue.— For  many  pnrposps  tlic  caption  is 

fonsi'.lcrod  ii  i)art  of  the  indietnieut,  and  it  may  aid  in  showing  the 
veniu'. 

2.  TnEOKY  OF  DEFENDANT    WHO    TESTIFIES  IN  HIS    OWN    HEIIALF.— Whf  n 

a  defendant,  who  has  a  right  of  election  as  to  several  defenses,  takes 
the  stand  as  a  witness,  and  makes  sucli  admissions  as  render  every 
theory  of  defense  unavailable,  save  one,  ho  will  be  deemed  to  have 
elected  lliat  one. 

3.  Rape  may  be  coninutted  on  unchaste  woman. 

4.  ArrEMPT  to  escape  may  be  considered.— Tiie  attempt  of  a  prisoner, 

under  indictment  for  a  criminal  offense,  to  escape  from  jail,  may  be 
considered  in  connection  with  the  other  evidence,  in  determining  the 
question  of  his  guilt  or  innocence. 


002 


AMERICAN  CRIMINAL  REPORTS. 


t  -M^ 


I      ! 


5.  Credibiuty  of  witnesses,  now  determined. —  An  instruction  that,  in 

deterniinint;  the  weight  to  be  given  to  tlie  tostimoiiy  of  the  tlilTerent 
witnesses,  iiuluding  the  defendant,  the  jury  should  take  into  ac- 
count the  "  interest  or  want  of  interest  thej'  have  in  the  case,  their 
manner  on  tiie  stand,  tlie  probability  or  improbability  of  their  testi- 
mony, with  all  other  circumstances"  before  them,  which  could  aid 
them  in  weighing  the  testimony,  is  correct. 

6.  Rape  —  Resistance  iiEyuisiTE. —  In  a  prosecution  for  rape,  it  is  neces- 

sary for  the  state  to  show  that  the  prosecuting  witness  resisted  with  all 
the  means  within  her  power;  but  tlie  nature  of  the  nu-ans,  and  the 
extent  of  the  resistance,  must  dejiend  upon  the  pinuliar  circumstances 
of  each  particular  case. 

7.  Improper  remarks  —  Counsel, — The  prosecuting  attorney,  in  his  open- 

ing statement,  called  the  defendant  "a  dirty  dog."  Jhld,  reprehcn- 
sibli',  but  not  surtlcient  to  justify  a  reversal. 

8.  RioHT  OF  JURY  TO  DETERMINE  LAW. —  See  opinion  for  instructions  on 

tills  iK>int. 

Appeal  from  Xoble  Circuit  Court.) 

//.  G.  Zhirii)ri')unii,  F.  Priclett,  L.  II.  Wr/'jh'i/  and  S.  21. 
Jltnch,  for  appellant. 

F.  T.  IlonI,  attorney -geuoral,  //.  C.  Peterson  and  li.  P.  Burr, 
for  the  state. 

XntLACK,  C.  J.  This  was  a  criminal  prosecution  based  upon 
the  following  indictment: 

'*  Statk  OK  Indiana,  Xoijlk  Cointy,  ss. —  Tx  tiik  Noulk  Ciucuit 
Corur  OF  TIIK  Jink  Tkkm,  iSS-t. 

^^ Slate  of  IwViana  v.  John  AndevHon. 

"  INDUrrMKNT. 

"The  grand  jury  of  the  county  of  Nohlo,  upon  their  oath, 
do  ju'esent  that  John  Andersim,  on  the  isth  day  of  June, 
1884,  at  the  county  of  Xoble,  in  and  upon  one  Ji>so|)hine  Field- 
ing, a  woman,  did  forcibly  and  feloniously  inalcc;  an  assault, 
and  her,  the  .said  Josephine  Fielding,  then  and  there  forcibly, 
and  against  her  will, feloniously  did  ravish  and  carnally  know, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state  of  In- 
diana." 

Anderson,  the  defendant  below  and  the  appellant  here, 
moved  to  (juash  the  indictment,  upon  the  ground  that  it  was 
not  charged,  Avith  sullicient  certainty,  tluit  the  crime  was  com- 


ANDERSON  v.  STATE. 


G03 


■uction  that,  in 
if  tlu'  different 
tuko  into  ac- 
tho  case,  their 
7  of  their  testi- 
liicli  could  aid 

ipc,  it  is  neoes- 

I'sirited  with  all 

ni'ans,  and  the 

circunistan'^es 

ley,  in  his  open- 
Uchl,  reprehen- 

instructions  on 


//  and  S.  21. 

I  L\  r.  Burr, 

II  based  upon 
ronLK  ClltCUIT 


)n  Uioir  oatli, 
ay  of    Juno, 

;e])liino  Fiold- 
;  an  assault, 
KM'i!  forcibly, 

irnaliy  know, 
lade  and  pi'o- 

e  state  of  In- 

ju'llant  hero, 
(I  that  it  wiis 
'inie  ^Yas  cuui- 


inltted  in  Xoble  county,  in  this  state.  The  circuit  court  never- 
theless overruled  the  motion  to  quash  the  indictment,  and  a 
trial  which  ensued  resulted  in  the  jury  finding  the  appellant 
ouilty  as  charged,  and  in  a  judgment  tiiat  he  be  imprisoned  in 
the  state's  prison  for  the  term  of  five  years,  ^^uiuerous  ques- 
tions were  reserved  upon  the  proceedings  below. 

While  the  indictment  was  not  as  full,  formal  and  explicit  as 
the  old  forms  required,  and  as  it  might  easily  have  been  made, 
it  was,  notwithstanding,  a  substantially  good  indictment  under 
our  present  Criminal  Code,  which,  for  many  purposes  at  least, 
makes  the  caption  and  upper  marginal  title  a  preliminary  ])art 
of  an  indictment.  11.  S.  1881,  g§  1732,  1733;  ]i[oore,'Crim. 
].aw,  §g  105,  lOO;  1  Ijish.  Crim.  Proc,  §  377.  See,  also,  section 
1750,11.  S.  1S81.  The  plain,  and  indeed  only  fair,  inference 
from  the  indictment,  considered  with  reference  to  all  its  parts, 
was  that  the  county  of  Xoble.  in  which  the  offense  was  charged 
to  have  been  committed,  was  the  county  of  that  name  situate 
within  and  constituting  a  ])art  of  this  state. 

The  prosecuting  witness  tostilied  that  the  appellant  had 
sexual  intercourse  with  her  twice  while  she  was  alone  with 
him  in  the  woods  near  Uome  City,  on  the  day  named  in  the 
indictment,  and  that  on  both  occasions  the  intercourse  was 
forcible,  and  against  her  will.  The  ap[)ollant,  who  became  a 
witness  in  his  own  behalf,  admitted  the  acts  of  sexual  inter- 
course testified  to  by  the  prosecuting  witness,  at  the  times  and 
places  indicated  by  her,  but,  in  extenuation,  claimed,  and  very 
l)()sitively  asserted,  that  both  acts  of  intercourse  were  with  her 
full  and  free  consent.  As  api>licable  to  the  issue  thus  made  by 
the  evidence,  the  court  instructed  the  jury  as  follows: 

"  If  vou  find  from  the  evidence  in  this  case  that  an  act  of 
sexual  intercoui'se  did  take  place  between  the  defendant  and 
the  prosecuting  witness,  as  averred  in  the  indictment,  the  ques- 
tion as  to  whether  or  not  the  prosecuting  witness  voluntarily 
consented  t<^  such  act  is  a  question  of  fact  for  you  to  de- 
termine from  the  evidence  in  the  case.  The  defendant  insists 
that  she  ilid  thus  voluntarily  consent  thereto,  and  that  he  used 
no  force  or  coercion  of  any  kind  to  compel  such  consent,  but 
that  she  yielded  to  his  desires  upon  his  rocjuest  alone.  AVhilo 
the  prosecution  insists  that  she  did  not  voluntarily  consen',  b:it 
that  she  resisted  to  the  fidl  extent  of  her  ability,  and  only 


RffT"' 


C04 


AMERICAN  CRIMINAL  REPORTS. 


t^'         =.L. 


yielded  when  her  will  was  overpowered,  and  that  if  she  finally 
submitted  to  her  fate,  it  was  against  her  will  and  for  fear  of 
more  serious  consecjuences.  You  are  to  say,  from  tlie  evidence, 
which,  if  either,  is  right;  and  if,  after  giving  due  weight  to 
all  the  evidence,  you  find  the  prosecuting  witness  did  volun- 
tarilv  consent  to  such  act  of  intercourse,  and  not  under  cocr- 
cion,  you  should  acquit;  but  if  you  find,  beyond  a  reasonal)l(' 
doubt,  that  the  act  Avas  by  force,  and  against  her  will,  and  find 
the  other  facts  averred  in  the  indictment  established  beyond  a 
reasonable  doubt,  vou  should  conrict." 

The  appellant  assails  this  instruction,  for  the  alleged  reason 
that  it  injuriously  restricted  him  to  a  single  theory  in  his  de- 
fense, since  he  had  the  right,  np  to  the  last  nionuMit,  to  elect 
upon  wJiat  ground  he  would  base  his  defense.  AVlien  the  trial 
began,  tlie  ai)j)ellant  had  an  election  as  to  the  ground  upon 
Avhich  he  wuuhl  rest  his  defense.  Having,  however, el(!cte<l  to 
take  the  stand  as  a  witness,  and  to  admit  all  tiie  h'aterial  mat- 
ters charged  against  him,  except  the  alleged  forcible  :«nd  felo- 
nious character  of  the  sexual  intercourse,  he  thereby  coniiriitted 
himself  to  a  singlt^  theory  in  his  defense,  for  the  obvious  reason 
that,  by  his  admissions,  he  had  rendered  any  and  every  otlu-r 
line  of  defense  nnavaila!)le.  The  instruction  in  (piesticm  was 
not,  tlierefore,  open  to  the  objection  urged  against  it.  The 
court  also  instructed  the  jury  as  follows: 

"Evidence  has  been  introduced  as  to  the  moral  character  of 
the  prosecuting  witness,  and  as  to  her  rejjutation  for  chastity 
and  virtue.  You  ai'e  not  to  understand  from  this  tliat  a  rape 
cannot  be  committed  on  a  woman  of  bad  moral  character.  A 
woman  may  be  a  common  prostitute,  and  may  still  be  the 
victim  of  a  rape.  This  evidence  has  been  introduced  only  for 
the  purj»ose  of  alfecling  her  credibility  as  a  witness,  and  as  a 
circumstance  alFecting  the  ])robability  of  the  act  of  intercourse 
being  voluntary  or  against  her  will,— upon  the  theory  that  a 
person  of  bad  moral  cliaracter  is  less  lik'ely  to  speak  the  trutii 
as  a  witness  than  one  of  good  moral  character,  and  that  a 
Avoman  who  is  chaste  and  virtuous  Avill  be  less  likely  to  consent 
to  an  act  of  illicit  carnal  intercourse  than  oneAvho  is  unchaste. 
So  that  whatever  conviction  this  evidence  nuiy  produce  in  your 
minds  as  to  Avhether  she  is  of  good  or  bad  moi'al  character,  or 
as  to  whether  she  is  chaste  or  unchaste,  vou  will  treat  it  as  a 


ANDERSON  v.  STATE. 


605 


if  she  finally 
d  for  fear  of 
tlio  evidence, 
lie  M'eiglit  to 
iS  did  Yolun- 
t  under  coer- 
a  reasonable 
will,  and  find 
lied  beyond  a 

lle<'ed  reason 
Dry  in  his  de- 
ment, to  eleet 
iVlien  the  trial 

ground  upon 
'Ver,  elected  to 

ii'uterial  nuit- 
'cible  :uul  felo- 
cby  eoniinitted 
obvious  rea~!on 
nd  every  othv'r 
I  ([uestion  ^va^ 

ainst  it.     Tlie 

1  character  of 
)n  for  chastity 
is  that  a  rape 
character.     A 
ly  still  be  the 
uced  only  for 
ness,  and  as  a 
of  intercourse 
theory  that  a 
K'ak  the  trutli 
er,  and  that  a 
vcly  to  consent 
ho  is  unchaste. 
)roduce  in  your 
,il  character,  or 
U  treat  it  as  a 


circumstance  afTecting-  liorcrcdil)iHty  toaid  you  in  determining 
whether  her  st<n'y  is  true  or  false,  and  tlie  act  of  intercourse 
voluntary  or  against  her  will." 

There  was  (svidence  to  which  this  instruction  was  applicable, 
and,  in  the  connection  in  which  it  was  given,  it  stated  the  law 
aptly  and  appropriately. 

The  court  further  instnicted  the  jury  in  these  words: 

"Evidence  has  been  introduced  as  to  an  attempted  escape 
from  jail  by  the  defendant  while  in  the  custody  of  the  sheriff 
of  this  county  on  this  charge.  If  you  find  from  the  evidence 
that  defendant  did  thus  attempt  to  escape  from  custody,  this  is 
a  circumstan(!e  to  be  considered  l)y  you,  in  connection  with  all 
the  other  evidence,  to  aid  you  in  determining  the  question  of 
his  guilt  or  innocence.'' 

There  was  evidence  tending  to  prove  that,  within  a  short 
time  after  the  isth  day  of  .Tune,  18S4,  the  ai)pellant  Avas  com- 
mitted to  the  comnum  jail  of  Noble  county,  upon  the  charge 
contained  in  the  iiulictment  in  this  case,  and  that,  not  lone: 
after  ho  was  so  committed,  he  made  a  vigorous  and  nearly 
successful  effort  to  escape  from  that  jail.  That  effort  to  escape 
constituted  a  cii'cumstance  which  the  jury  were  authorized  to 
consider,  in  connection  with  the  other  evidence  in  the  cause, 
and  in  that  view,  we  see  no  error  in  the  instruction  given  in 
relation  to  it  as  above.     Whart.  Crim.  Ev.,  §  750. 

The  court  still  further  instructed  the  jury  that  —  "In  deter- 
mining tlie  weight  to  be  given  the  testimony  of  the  different 
witnesses,  yt»u  sliould  take  into  account  the  interest  or  want  of 
interest  they  have  in  the  case,  their  manner  on  the  stand,  tlie 
probability  or  improbability  of  their  testinu)ny,  with  all  other 
circumstances  before  you  which  can  aid  you  in  weighing  their 
testimony.  The  defendant  has  testified  as  a  witness,  and  you 
should  weigh  his  testimony  as  you  weigh  tliat  of  any  other 
witness.  Consider  his  interest  in  the  result  of  the  case,  his 
nuinner,  and  the  probability  or  improbability  of  his  testimony." 

This  instruction  also  appears  to  us  to  have  stated  the  law 
correctly  on  the  general  subject  of  the  credibility  of  witnesses, 
and  was  pertinent  to  much  of  the  evidence  which  the  jury  had 
to  consider  in  making  up  their  verdict.  i\Ww«  v.  Voire,  55 
Ind.,  455;  Canada  v.  Cun'i/,  73  Ind.,  240;  Fidcr  v.  State,  77 


COG 


AMERICAN  CRIMINAL  REPORTS. 


Incl,  42;  Wooleii  v.  Whltacre,  91  Intl.,  502;  Dodd  i\  Moore,  id., 
622;  Owrton  v.  Rogers,  99  Ind.,  595. 

In  addition  to  the  foreooino-  instructions,  and  many  others 
upon  whicli  no  (juestion  is  made  here,  the  court  told  the  jury 
that  —  "Tlie  rule  of  hiw  wliicli  throws  around  the  defendant 
the  presumption  of  innocence,  and  requires  the  state  to  cstab- 
lisli  beyond  a  reasonable  doubt  every  material  fact  averred  in 
the  indictment,  is  not  intended  to  shield  those  who  are  actually 
guilty  from  just  and  merited  punishment;  but  is  a  humane 
])rovision  of  the  law,  which  is  intended  for  the  pnjtection  of 
the  innocent,  and  to  guard,  so  far  as  hmnane  a<^encies  can, 
against  the  conviction  of  those  unjustly  accused  of  crime." 

Objections  are  made  to  this  instruction,  but  no  cpiestion  is 
made  upon  it  which  we  feel  called  upon  to  specially  notice.  It 
is  nothing  more  than  a  substantial  repetition  of  what  has  here- 
tofore, in  some  form,  received  the  ajiprobation  of  this  court, 
and  notably  so  in  the  recent  case  of  Stout  i\  /State,  90  Ind.,  1. 
See,  also,  Turner  ?'.  State,  102  Ind.,  425. 

By  an  instruction,  known  as  Xo.  4,  the  court  told  the  jury 
that  an  indictment  for  rape  involved  also  a  charge  of  an  as- 
sault and  battery;  and  that  if  the  evidence  warranted  such  a 
conclusion,  the  appellant  might  be  accpiitted  of  the  charge  <»f 
rape,  and  found  guilty  of  an  assault  and  battery  only.  IJy  a 
further  instruction,  known  as  Xo.  14,  the  court  submitted  to 
the  jury  a  form  for  their  verdict  in  case  they  should  find  the 
defendant  guilty  of  rape  as  charged.  Also  gave  to  the  jury  a 
form  for  a  venlict  in  the  event  tliat  they  might  (ind  the  de- 
fendant guilty  of  an  assault  and  battery  only.  It  is  contended 
that  both  of  these  instructions  were  injurious  to  the  appellant, 
since  they  both  failed  to  inform  the  jury  that,  under  the  in- 
dictment, Ik;  might  have  been  found  guilty  of  an  assault  and 
battery  with  intent  to  commit  a  rape.  Hut,  as  has  been  seen. 
there  was  nothing  in  the  evidence  tending  to  make  out  either 
a  case  of  assault  and  battery  only,  or  of  assault  and  battery 
with  intent  to  commit  a  rape.  The  sexual  intercourse  com- 
plained of  having  been  admitted  by  the  appellant,  only  one 
question  remained,  and  that  was  whether  it  took  place  under 
circumstances  which  constituted  a  rape,  or  only  an  ordinary 
case  of  fornication  or  adultery.    The  circuit  court  might  there- 


•■WflF-' 


ANDERSON  r.  STATE. 


007 


V.  2foorc,  id., 

many  others 
told  the  jury 
the  defendant 
tatc  to  estah- 
ct  averred  in 
ID  are  actually 
is  a  hiunanc 
protection  of 
a<rencies  can, 
of  crime," 
no  qnestion  is 
ally  notice.   It 
what  lias  here- 
of this  conrt, 
fate,  yO  Ind.,  1. 

•t  told  the  jury 
arfje  of  an  as- 
irranted  such  a 
the  chari,'e  of 
ry  only.     Hy  a 
t  submitted  to 
should  find  the 
c  to  the  jury  a 
■  ht  lind  the  de- 
It  is  contended 

the  apiJcUant, 
t,  under  the  in- 
an  assault  and 

has  been  seen, 
iiake  out  either 
ult  and  battery 
atercoursc  coni- 

■Uant,  only  one 
lok  ))lace  under 
dy  an  ordinary 
urt  might  there- 


() 


fore  have  well  omitted  to  instruct  the  jury  that  the  appellant 
could,  under  the  indictment,  he  found  guilty  of  an  assault  and 
battery  only,  and,  for  the  same  reason,  there  was  no  error  in 
the  failure  of  that  court  to  tell  the  jury  that  ujjon  an  indict- 
ment for  rape  the  defendant  might  he  convicted  of  an  assault 
and  battery  with  intent  to  commit  a  rape. 

The  appellant  asked  the  court  to  instruct  the  jury,  in  ctTect 
that  a  woman,  assaulted  with  the  intent  to  commit  a  rape  upon 
her,  is  expected  to  bite,  if  she  has  teeth ;  to  kick,  if  she  has 
limbs;  to  scream,  if  she  has  a  mouth;  and  to  gencraUv  resist 
by  all  other  violent  means  within  her  power;  l)ut  the  court 
refused  to  so  instruct  the  jury.  The  court  had  already  in- 
structed the  jury  that  it  w^as  incund)ent  upon  the  state  to  show 
that  the  prosecuting  witness  had  resisted  with  all  the  means 
within  her  power,  and  that  was  as  far  as  the  court  was  required 
to  go  under  <jur  decided  cases,  and  others  of  recognized  author- 
ity in  this  state.  The  nature  and  extent  of  resistance  which 
ought  reasonably  to  be  expected  in  each  particular  case  must 
necessarily  depend  very  much  upon  the  peculiar  circumstances 
attending  it,  and  it  is  hence  quite  inqn-acticable  to  lay  down 
any  rule  upon  that  subject  as  applicable  to  all  cases  involving 
the  necessity  of  showing  a  reasonable  resistance.  Lcdhij  o. 
KSfafe,  4:  J  ml.,  5SU;  Poiiwroi/  v.  ^Sfah;  0+  Ind.,  00;  Com.  v. 
MeDouahl,  Ho  ^Mass.,  -io.");  2  Bish.  Crim.  Uiw,  <j  1122. 

One  David  15.  Anderson  was  called  as  a  witness  for  the  de- 
fense, lie  testified  to  having,  in  company  with  others,  had  a 
conversation  with  the  prosecuting  witness  on  the  21st  day  of 
-lune,  1SS4,  concerning  the  alleged  outrage  upon  her  by  the 
appellant,  and  to  a  good  many  things  which  the  prosecuting 
witness  said  on  that  occasion.  Counsel  for  the  appellant  then 
iisked  the  witness  if  Mi's,  Fielding  did  not  say  in  that  conver- 
sation that  she  would  not  have  cared  so  much  if  the  appellant 
had  taken  her  to  any  kind  of  a  decent  place;  but  u]ion  objec- 
tion being  made  the  court  overruled  the  question,  and  would 
not  permit  it  to  bo  answered,  and  \\\)o\\  that  ruling  a  question 
was  reserved  at  the  time  it  was  made.  The  record  does  not 
disclose  the  ground  upon  which  that  ruling  was  made,  but  it 
was  presumably  ui)on  the  idea  that  the  question  excluded  was 
too  leading  in  its  character,  since,  immediately  following,  in 
response  to  a  more  general  question,  the  witness  stated  that 


r        ' 


.',  f 


G')S 


AMERICAN  CRIMINAL  REPORTS. 


]\rrs.  Fielding  said  she  "vvould  not  have  cared  if  tlio  appellant 
had  taken  her  to  a  decent  place.  We  see  no  error  in  the  exclu- 
sion of  the  question  first  propounded  as  al)ove,  because  of  its 
leading  form;  l)ut,  conceding  tlie  ruling  upon  it  to  have  been 
erroneous,  the  error  was  cured  by  the  proceedings  Avliich  im- 
mediately ensued. 

In  his  oitening  statement  to  the  jury,  the  ])r()secuting  attor- 
ney said  that  the  appellant  was  "  a  dirty  dog,"  and  that,  in 
separating  the  prosecuting  witness  from  her  companions,  he 
acted  ''like  a  dirty  dog,  as  he  was;"  and  it  is  argued  that  the 
using  of  such  epithets  in  a  mere  opening  statement  constituted 
such  misconduct  on  tiie  part  of  the  prosecuting  attorney  as 
requires  a  reversal  of  the  judgment.  It  was.  strictly  speaking, 
a  breach  of  professional  decorum  to  api)ly  opprobious  epithets 
to  the  appellant  in  advance  t»f  the  introduction  of  any  evidence 
from  which  disparaging  inferences  might  have  been  drawn,  and 
the  circuit  court  woul<l  have  been  justified  in  restraining  the 
prosecuting  attorney  from  the  use  of  such  epithets  in  a  merely 
opening  statement ;  but  the  breach  of  professional  decorum  tlius 
involved  ought  not  to  be  regarded  as  of  sullicient  importance 
to  cause  a  reversal  of  the  judgment.  Jl<i.ii><dte  v.  State,  101 
Ind.,  85 ;  J'.j)j).s  v.  State,  102  Ind.,  5;'>9. 

The  record  in  this  cause  is  comparatively  a  very  voluminous 
one, —  much  more  so,  it  seems  to  us,  than  it  was  necessary  to 
have  been  in  such  a  cause,  and  for  that  reason  some  of  the 
minor  matters  to  which  our  attention  has  been  called  in  argu- 
ment ma}' have  escaped  us  in  our  examinaticMi  of  the  record; 
but,  so  far  we  have  been  able  to  observe,  all  the  legal  proposi- 
tions necessary  for  the  information  of  the  jury  were  fairly,  and 
with  substantial  accuracy,  embraced  witiiin  the  instructions 
given  by  the  court  upon  its  own  motion.  Consequently  no 
cause  has  been  shown  for  a  reversal  of  tiie  judgment  cither  on 
account  of  instructions  given  or  instructions  refused. 

It  is  finally  claimed  that  the  verdict  was  not  sustained  by 
the  evidence  in  some  material  i'esj)ects,  and  that  for  that  rea- 
son, if  for  no  other,  the  judgment  ought  to  be  reversed.  There 
were  some  weak  points  in  tiie  evidence,  and  on  that  account 
there  is  room  for  grave  apprehension  that  the  jury  may  have 
made  a  mistake  in  the  conclusion  at  which  they  arrived,  but 
there  was  evidence  tending,  in  some  degree,  to  sustain  all  the 


t^*' 


ANDERSOy   .•.  STATE. 


609 


10  appellant 
n  the  exclu- 
causc  of  its 
,  have  been 
rs  which  im- 

'uting  attor- 
and  that,  in 
npanions,  ho 
riied  that  the 
t  constituted 
tr  attorney  as 
tly  speaking, 
)i()us  epithets 
any  evidence 
?u  drawn,  and 
'Straining  the 
ts  in  a  merely 
[  decorum  thus 
nt  importance 
e  V.  State,  101 

rv  voluminous 
|is  necessary  to 

11  some  of  tiie 
called  in  argu- 
«)f  the  record ; 

legal  proposi- 
H'ro  fairly,  and 
10  instructions 
i)nse(iuently  no 
inont  cither  on 
used. 

|)t  sustained  by 
[vt  for  that  rea- 

versed.    There 
,n  that  account 

jury  may  bavc 

liey  arrived,  but 

sustain  all  tlio 


material  averments  contained  in  the  indictment,  and  under 
such  circumstances  we  ought  not  to  reverse  the  judgment  upon 
the  evidence. 
The  judgment  is  affirmed,  Avith  costs. 

ON   PETrnON   FOR   liEUEAKINO. 

NiuLACK,  C.  J.  The  appellant  coini)lains  that  the  circuit 
court  erred  in  modifying  instruction  No,  (5,  and  in  refusing  to 
give  instruction  No.  8,  asked  by  him,  respectively,  at  the  trial, 
and  that  we  failed  to  consider  the  questions  arising  upon  tlioso 
instructions  at  the  former  liearing  of  this  appeal.  This  failure  on 
our  part  was  a  mere  inadvertence,  resulting  from  the  volumi- 
nous character  of  the  record  as  well  as  of  the  brief  filed  on 
l)ehalf  of  the  appellant.  Instruction  No.  S,  asked  as  above,  was 
as  follows: 

"  In  this  case  you  are  the  sole  judges  of  the  law,  and  your 
right  to  determine  the  law  of  the  case  for  yourselves  goes  to 
this  extent :  tliat  even  if  all  the  facts  alleged  in  the  indictment 
are  established  by  the  evidence  beyond  a  reasonable  doubt,  you 
have  still  the  riglit  to  determine  whether  or  not  such  facts, 
when  so  established,  constitute  a  public  offense,  under  the  laws 
of  tJjis  state,  and  if  you  determine  that  they  do  not,  you  have 
the  right  to  acquit  the  defendant.  You  ai'e  not  bound  by  the 
instructions  given  by  the  court  as  to  the  law,  but  are  at  liberty 
to  disregard  such  instructions,  if  you  see  lit  to  do  so,  and  de- 
termine the  law  for  3-ourselves." 

This  instruction  invoked,  in  any  event,  a  too  extreme  con- 
struction of  section  19  of  the  bill  of  rights,  which  declares  that 
"  in  all  criminal  cases  whatever  the  jury  shall  have  the  right  to 
determine  the  law  and  the  facts."  This  provision  evidently 
means  that  the  jury  have  the  right  to  determine  all  questions 
of  law  applicable  to  such  matters  as  they  are  required  to  con- 
sider in  making  up  their  verdict,  but  cannot  bo  rightfully  con- 
strued to  mean  that  the  jury  are  the  sole  judges  of  the  law  in 
every  respect  in  a  criminal  cause.  The  court  judges  of  the 
sufficiency  of  an  indictment  under  the  law.  It  decides  all 
questions  of  law  arising  upon  the  admissibility  of  evidence,  and 
has  the  power  to  grant  a  new  trial  when  the  jury  have  erro- 
neously determined  the  law  injuriously  to  the  defendant.  The 
judge,  too,  is  required  to  instruct  the  jury  upon  all  matters  of 
Vol.  V  — 39 


010 


AMERICAN  CRIMINAL  REPORTS. 


k 

3; 

law  necessary  for  tlieir  inforiuation  in  the  rendition  of  a  verdict 
in  a  criminal  cause.  Thus,  instructing  the  jury  involves,  in  a 
qualified  sense,  at  least,  the  exercise  of  a  judgment  upon  all 
matters  of  law  concerning  whicii  the  judge  must  give  informa- 
tion to  the  jury.  The  jury  are,  consequently,  not,  strictly 
speaking,  the  sole  judges  of  the  law  in  all  its  relations  to  a  crim- 
inal case.  Then,  too,  the  instruction  in  question  came  too  near 
carrying  with  it  the  intimation  that  the  jury  have  the  right,  in 
their  mere  discretion,  to  disregard  all  law  in  reaching  a  verdict 
in  a  criminal  prosecution.  This  they  have  the  jiower  to  do  in 
many  cases,  but  have  no  legal  or  moral  /'t'fj/it  to  do,  under  the 
constitution,  or  otherwise.  The  kind  of  ''right ''  referred  to  in 
the  bill  of  rights  is  defined  by  Webster  in  his  dictionary  to  b(^ 
'•  a  privilege  or  immunity  granted  by  authority."  In  a  more 
comprehensive  sense  it  may  be  said  to  i)e  "a  privilege  or  im- 
munity recognized  or  conferred  by  a  competent  authorit}'."' 

It  is  the  duty  of  the  jury  to  avail  themselves  of  all  the  op- 
portunities which  may  be  afforded  them  to  ascertain  what  tlic 
law  governing  the  case  before  them  is,  and  it  is  their  right, 
after  hearing  all  that  may  be  ])roperly  said  on  the  subject,  to 
determine  what  the  law,  in  that  respect,  ought  to  be  held  to  be, 
and  to  decide  accordingly;  but  this  does  not  place  the  jury 
above  the  law,  or  confer  upon  them  the  lawful  right  to  decide 
simply  as  they  "  see  fit,"  regardless  of  all  law,  as  it  has  been 
recognized  or  established  by  the  proper  tribunals. 

The  judgment  in  the  case  of  IIu/felKon  v.  State,  91  Ind.,  42>\ 
was  reversed  because  one  of  the  instructions  given  in  the  cause 
■was  esteemed  to  have  been  too  mandatorv  in  its  structure,  and 
hence  to  have  trenched  too  much  upon  the  province  of  the 
iurv.  The  doctrine  of  that  case  does  not  sustain  the  instruc- 
tion  refused  in  this  case  in  all  of  its  essential  features,  as 
claimed  by  counsel,  and  we  think  that  case  carries  the  right  of 
the  jury  to  determine  the  law  in  a  criminal  case  to  its  extreme 
limit,  in  a  practical  point  of  view.  We  are  therefore  of  the 
opinion  that  the  circuit  court  did  not  err  in  refusing  to  give  in- 
struction No.  8,  hereinabove  set  out. 

The  concluding  ]iart  of  instruction  No.  6,  asked  by  the  ap- 
pellant and  given  in  a  modified  form,  contained  a  more  con- 
densed, but  substantially  similar,  statement  of  the  law  to  that 
embraced  in  instruction  No.  8,  excei>t  that  it  did  not  assert  tliat 


ANDERSON  v.  STATE. 


fill 


311  of  a  verdict 
involves,  in  a 
inent  wpon  all 
<vivo  informa- 
r,  not,  strictly 
tions  to  a  crini- 
canie  too  near 
^e  the  ri<,^ht,  in 
chinf?  a  verdict 
power  to  do  in 
0  do,  under  the 
"  referred  to  in 
lictionary  to  b<^ 
:v."     In  a  more 
privilege  or  ini- 
;  authority."' 
IS  of  all  the  op- 
ortain  what  the 
,  is  their  ri^ht. 
L  the  subject,  to 
to  1)0  held  to  be, 
;  ])laco  the  jury 
rio'ht  to  decide 
,  as  it  has  been 
als. 

ate,  94:  Ind.,  42^.. 
iven  in  the  cause 
its  structure,  and 
province  of  the 
tain  the  instruc- 
tial  features,  as 
cries  the  right  of 
se  to  its  extreme 
therefore  of  the 
fusing  to  give  in- 
asked  by  the  ap- 
ned  a  more  con- 
f  the  law  to  that 
d  not  assert  that 


the  jury  were  the  sole  judges  of  the  law  in  a  criminal  case,  and 
the  modification  complained  of  consisted  in  the  striking  out  tlie 
concluding  part  of  the  instruction. 

The  fifth  clause  of  section  1823,  R  S.  1881,  after  provid- 
ing that  the  judge  shall,  in  a  criminal  case,  state  to  the  jury  all 
tlie  matters  of  law  necessary  for  tlieir  infoi-mation,  concludes 
as  follows:  "If  he  present  the  facts  of  tlie  case,  lie  must  in- 
form the  jury  that  they  are  the  exclusive  judges  of  all  questions 
of  fact,  and  that  they  have  a  right  also  to  determine  the  law." 
Instruction  No.  5,  given  to  the  jury  by  the  circuit  court,  upon 
its  own  motion,  in  this  case,  was  in  these  words:  "  You  are  ex- 
clusive judges  of  all  questions  of  fact,  and  you  have  the  right, 
also,  to  determine  the  law."  This  instruction  was  a  substan- 
tial alHrmation  of  the  bill  of  rights,  as  well  asasutficiont  com- 
pliance with  the  provision  of  the  statute  lastly  above  set  out, 
on  the  subjects  to  which  it  related;  and  while  the  circuit  court 
might,  in  its  discretion,  have  given  further  and  more  elaborate 
instructions  on  either  one  or  both  of  these  subjects,  it  was  not 
error  to  refuse  to  tlo  so,  and  it  was  bcttei',  perhaps,  not  to  at- 
tempt to  do  so. 

Other  grounds  are  suggested  as  reasons  for  a  rehearing,  but 
these  suggestions  relate  to  questions  which  were  considered 
with  care  at  the  former  hearing,  and  upon  ^vhich  we  regard  it 
as  unnecessarv  to  enter  into  a  formal  review. 

The  petition  for  a  rehearing  is  overruled. 

ZoLLARS,  J.,  was  absent. 

Note.— In  Daiinon  r.  The  People,  90  111.,  921,  amoiiffthe  errors  assiffiied 
for  !i  reversal  of  the  judgment,  one  was,  that  the  court  below  invaded  the 
lirovince  of  the  jury  in  giving  the  tenth  of  the  people's  instructions.  That 
instruction  is  as  follows: 

"  The  court  instructs  the  jury  that  they  are  judges  of  the  law  as  well  as 
of  the  facts.  But  the  jury  are  further  instructed  that  it  is  the  duty  of 
the  jury  to  accept  and  act  upon  the  law  as  laid  down  to  you  by  the  court, 
unless  you  can  say  upon  your  oaths  that  you  are  better  judges  of  the  law 
than  the  court;  and  if  you  can  say  upon  your  oaths  that  you  are  better 
judges  of  the  law  than  the  court,  then  you  are  at  liberty  so  to  act." 

Mr.  Justice  Walker,  delivering  the  opinion  of  the  coui't  (Mr.  Justice 
Dickey  dissenting),  said : 

"  If  the  court  has  a  right  to  instruct,  it  is  because  it  is  supposed  it  knows 
and  understands  the  law  better  than  the  jury.  It  is  for  that  reason  both 
tlie  defendant  and  the  prosecution  ask  instructions.    If  the  jury  are  the  sole 


.oy. 


•;i2 


A5IERICAN  CRIMINAL  REPORTS. 


JiuIkos  of  tho  law  without  any  aid  from  the  court  in  its  exi)ositlon  and  ap- 
plication, tiuMi  whonever  the  court  instructs  either  for  the  prosecution  or 
the  accused,  it  invades  the  province  of  the  jury.  WIdlst  accused  insists 
tliat  the  province  of  tlie  jury  is  invaded,  he  would  not  liesitate  to  demand 
a  new  trial  if  the  jury  liad  found  against  the  law  as  f^iven  to  them  hy  tlic 
court.  Hence  l\o  would,  in  such  case,  appeal  from  the  jury  to  the  court. 
uix)n  tlie  xroujids  that  the  court  ultimately,  ami  not  the  jury,  lias  the  right 
to  reverse  the  decision  of  the  jury  a.s  to  the  law  of  the  ca.se,  and  hecause  the 
court  has  the  right  to  ii/orm  the  jury  as  to  the  law  and  to  enforce  its  de- 
cisions when  disregarded,  and  against  the  accused,  in  criminal  cases,  as  well 
as  in  civil  cases. 

'•  It  is  not  unrea.sonable  to  retjuire  the  jury  to  say  they  know  the  law  het- 
tt'r  than  the  court  Iveforc  thej*  disregard  its  in.structions.  This  is  the  con- 
struction given  to  this  statute  by  sever.al  decisions  of  this  court.  Sec 
Si'hitii'r  r.  The  I\'oph;  23  III.,  17 ;  Fisher  v.  The  People,  id.,  283 ;  and  Mullinir 
V.  The  People,  76  id.,  211,  where  this  fm-m  of  instruction  is  approved  ami 
sanctioned." 

This  is  a  rule  which  will  commend  itself  to  the  good  sense  of  the  average 
of  mankind,  unless  we  undertake  to  abolish  courts  and  juries  and  mete 
speedy  justice  to  offenders  after  the  fashion  of  the  Judge  Lynch  code. 


"Wir.rjAMs  V.  Thh  State. 

(20  Florida,  777.) 

Rape:    Infant  ineapable  of  committing. 

At  common  law,  a  boy  un<ler  the  age  of  fourte*>n  years  is  presumed  to  li" 
incapable  of  committing  the  crime  of  rajH?. 

Writ  of  error  to  the  ('ircuit  Court  for  Orange  County. 
The  facts  of  the  case  are  stated  in  the  opinion. 

Wm.  Scott  and  ./.  JIi/(/h  Mu7'j>/nj,  for  plaintiff  in  error. 
The  Attornei/-Geneml,  for  the  state. 

Mr.  Justice  Van  Valkenbukoh  delivered  the  opinion  of  tlie 
court : 

The  plaintiff  in  error  in  this  cause  was  indicted  in  the  month 
of  March,  A.  D.  18S3,  in  the  county  of  Orange,  for  the  crime 
of  rape.  lie  pleaded  not  guilty,  was  tried  in  July  of  the  same 
year,  and  was,  by  the  verdict  of  the  jury,  found  guilty.  Coun- 
sel for  defendant  moved  for  a  new  trial,  upon  certain  grounds 
set  out  in  the  motion.    The  motion  was  denied  by  the  court, 


WILLIA5IS  V.  THE  STATE. 


C13 


IMbitiun  and  ap- 
e  l>i'osecution  or 

I  acciisfjcl  insists 
itate  to  demaiiil 

II  to  tliein  by  tlu- 
ury  to  the  court, 
ry,  has  the  right 
,  anil  because  tho 
to  enforce  its  do- 
nal  cases,  as  well 

now  the  law  bct- 
This  is  the  con- 
this  court.  St'c 
283;andi(fMHi»i/.i' 
I  is  approved  ami 

iseof  the  averajif 
juries  and  met'' 
Lynch  code. 


is  presumed  to  !»■ 

County. 

1. 

:  in  error. 

opinion  of  the 

kI  in  the  montli 
for  the  crime 

ul}^  of  the  same 
guilty.     Coun- 

certain  grounds 

il  by  the  court. 


:intl  the  counsel  duly  c'Xoepte<l  to  the  jiulgniont  of  the  court. 
Tlie  defendant  was  thereupon  sentenced  to  death,  and  brinrrs 
Ids  writ  of  error. 

From  the  evidence  brought  up  in  the  bill  of  exceptions,  it 
appears  that  a  married  Avoman  was  stopped  by  a  negro,  wiioni 
she  identified  as  tiiis  defendant;  that  he  cauu'lit  her  bv  the 
;i:-m.  dragged  lier  into  tlie  buslies  and  outrage(i  her;  tiiat  she 
was  in  feeble  health,  frightened  and  unnerved;  tliat  he  re- 
mained with  her  about  one  hour.  It  also  appears  that  the 
defendant  was  not  fourteen  years  of  age,  but  was  between 
thirteen  and  fourteen  vears  of  a<re. 

The  court  charged  the  jm-y,  anumg  other  things,  that  "rape 
is  the  cai-nal  knowledge  of  a  female  forcibly  and  against  her 
will.  There  is  a  presumption  of  law  that  an  infant  under 
tVmrteen  is  incapable  of  committing  or  attempting  to  commit 
the  crime;  yet  it  has  been  held  that  an  infant  under  that  age 
may  be  convicted  of  an  attempt.  You  have  heard  the  testi- 
mony as  to  his  age;  you  are  judges  of  its  force  and  trutli." 

Subsecpiently  the  jury  was  recalled  and  a  further  instruction 
given  to  tliem  as  follows:  "An  infant  under  fomteen  years 
is  presumed  to  be  unable  to  commit  a  rai)e,  but  you  must  be 
satisfied  that  he  is  under  that  age,  and  incapable,  from  the 
testimonv  and  appearance.*' 

The  evidence  in  respect  to  the  age  of  the  defendant  was  as 
follows:  Peter  AVilliams,  a  brother  of  the  defendant,  was 
called  by  the  state,  and  on  his  cross-examination  testified  that 
the  defendant  was  between  thirteen  and  fourteen  years  of  age; 
that  he  knew  of  his  brother's  age  from  what  his  father  had 
told  him.  The  defendant,  in  making  liis  statement  under 
oath,  said  that  accoixling  to  his  nu)ther"s  statement  he  was 
thirteen  years  of  age.  To  tliis  proof  and  statement  there  was 
no  objection,  nor  was  there  any  contradictory  or  other  evi- 
dence upon  the  subject. 

•The  charge  of  the  court  that  the  jury  "  must  be  satisfied 
that  he  is  under  that  age,  and  incapahlefrom  the  testlmonij  and 
appearance,^'  is  clearly  wrong. 

The  statutes  of  this  state  lix  no  age  Avithin  which  a  person  is 
incapable  of  committing  this  crime,  but  the  common  law  is 
explicit  upon  the  subject  and  the  authorities  are  numerous. 


mm 

m4 


014 


AMERICAN  CRIMINAL  REPORTS. 


It  i)rcsumos  tliat  an  infant  under  fourteen  years  of  ago  is  un- 
able to  couimit  the  crime  of  rape,  and  therefore  that  ho  canncjt 
he  guilty  of  it.  In  1  Hale's  ]*.  C,  ()2!>.  it  is  said:  "An  infant 
unch'r  the  ago  of  foiu'teen  years  is  presumed  by  law  unable  to 
commit  a  ra])e,  and  therefore,  it  seems,  cannot  be  guilty  of  it; 
and  though  in  otlicr  iKiVnm'^  tndlitln  )^iii>pL't  arfuhuti  in  some 
cas(!s  as  has  inxMi  shown,  yet  it  seems  as  to  this  fact  the  law 
presumes  him  impotent,  as  well  as  wanting  discretion."  A7/*y 
V.  (i)vniiihrl(hji',  7  Car.  A:  Payne,  582;  R<'(/!nii  v.  Jirimilou,  1) 
id.,  ;5C();  licijlua  v.  P/dlipn,  8  id.,  TiiO;  Iloscoe's  Crim.  Ev., 
S,"»!». 

In  I  Wharton's  Trim.  Law,  sec.  551,  it  is  said :  "  At  common 
law  a  boy  under  fourteen  is  irrebuttahly  ])resumed  to  be  inca- 
j)able  of  conimitting  a  rape."  In  New  York  and  Ohio  this 
presumption  is  held  to  be  rebuttable.  Whether  a  boy  under 
fourteen  is  indictabit^  at  common  law  for  Jin  assault  with  in- 
tent to  ravish  has  been  disputed.  The  affirmative  has  boon 
maintained  in  Massachusetts;  and  in  New  York  it  has  been 
held  that  while  there  is  a.|)resuni|>tion  of  incapacity,  this  pn>- 
suriijjtion  may  be  overcome  by  counter-])r(jof.  In  England  and 
North  Carolina  the  j)resumption  of  incapacity  is  irrebuttable." 
In  no  state,  however,  as  far  as  we  are  able  to  find,  has  it  been 
held  that  a  boy  under  fourteen  could  be  convicted  upon  ;iii  in- 
dictuuMit  for  rape.  If  the  rule  be  such,  then  the  largi 
the  court  that  the  jury  "must  be  satisfied  ♦'  is  undoi' 

that  age,   and   incapable,   from   the  testin;  and  a]}iHai 

(tnce,^^  had  a  tendency  to  mislead  them.  The  pearave  alom; 
of  tiie  boy  is  not  legal  evidence  against  him  of  c  her  ago 
or  puberty,  and  there  certainly  was  no  testimony  to  siiow  tliiit 
ho  was  older  than  fourteen,  or  even  that  he  had  arrived  at  that 
iigo.  In  Ohio  it  is  held  that  "  an  infant  under  the  age  of  four- 
teen years  is  pn^sumed  to  be  incapable  of  committing  tlio 
crime  of  rape,  or  an  attem|)t  to  commit  it,  but  that  presump- 
tion may  be  rebutted  by  proof  that  he  has  arrived  at  the  ago 
of  puberty,  and  is  ca{)al)le  of  emission  and  consummating  the 
crime."  ]Villia//i.s  v.  The  State,  l-I  Ohio,  222.  The  same  rule 
prevails  in  New  York.  TJw  People  v.  liando/p/i,  2  P.  C.  \l, 
171.     See,  also.  Coin.  v.  Urecn,  2  Pick.,  3S(). 

As.  however,  there  was  no  evidence  tending  to  prove  such  a 


1  uf 


SMITH  V.  PEOPLE. 


615 


3  of  ago  is  un- 
that  ho  cannot 
\ :    ''  An  infant 
'  law  unable  to 
be  guilty  of  it; 
,iat>uih  in  sonic 
s  fact  the  law 
■retion."     A7/(;/ 
V.  Jirlmihu,  '.> 
!oo's  Ci'im.  Ev., 

. :  "At  common 
limed  to  be  inca- 
c  and  Ohio  this 
her  a  boy  under 
assault  with  in- 
inative  has  been 
'ork  it  has  been 
iq)acity,  this  ])re- 
In  England  and 
r  is  irrebuttable." 
)  iind,  has  it  been 
icted  upon  iiii  in- 
en  the      iary> 
ll,  is   under 

and   apinat 
peararfc  alone 
im  of  e-iher  age 
lony  to  sIkjw  tliat 
ad  arrived  at  tlmt 
r  the  age  of  four- 
committing  tlie 
mt  that  presump- 
rrived  at  the  age 
lonsummating  the 
The  same  rule 

Mi>h  2  !'•  ^-  ^^•' 
i.r  to  prove  such  a 


■itato  of  facts,  this  question  does  not  arise  in  this  case,  and  we 
therefore  refrain  from  expressing  any  oi)inion. 

It  is  not  necessary  to  notice  the  other  errors  assigned,  for 
the  judgment  must  be  reversed  and  a  new  trial  ordered. 

Note.  — Tho  severe  imiiishnu'iits  attaclied  to  jietty  DiTi-iisos  at  common 
law  gave  rise  to  many  of  tlie  teclinical  rules  wlilcli  art-  nu-t  witii  in  the  atl- 
niiniiitration  of  the  eriininal  law.  Many  petty  oirense.s,  sueh  as  larceny, 
were  punishahle  with  death,  ami  it  became  necessary  for  tlu'  courts  to  forni- 
ulute,  u]iliolil  anil  t'nforce  certain  inllexihle  rules  in  order  to  protect  persons, 
jirobably  inntK'eiit,  a,u;ainst  l)arl)arous  punishments,  Si >  lon;^  as  the  Ici^isla- 
ture  of  the  Mtate  of  Florida  sees  fit  to  leave  no  alternative  to  the  courts  but 
to  liang  or  acquit  a  man  against  whom  is  preferred  an  imlictiiient  for  rape, 
the  action  of  the  co\irt  in  the  above  case  will  merit  and  receive  the  plaudits 
of  the  profession.  If  the  discretion  to  imuisli  the  olfouder  by  imprison- 
mejit  in  the  state's  prison  for  a  term  of  years  were  vested  in  the  trial  court 
iir  jury,  the  conviction  of  the  defendant  would,  in  all  human  probability, 
have  iMion  sustained.  The  ipiestion  whether  a  l>oy  under  fourteen  years  is 
('a|)able  of  conuiiitting  rape  is  p\uely  a  question  of  fact.  Some  boys  are 
;us  fully  developed  at  fourteen  years  of  age  iis  others  are  at  twenty,  and  if 
of  sane  mind  and  i)hysically  capable  of  conunitting  the  offense,  why  should 
they  eHcai)e  its  coiisei|uences?  This  case  serves  to  illustrate  the  wisdom  of 
tiie  rule  that  it  is  the  certainty  rather  than  the  severity  of  the  punishment 
which  detera  offenders. 


Smith  v.  Pkoit-e. 

(8  Colo.,  457.) 

Receivino  stolen  PROPERTY:  Trial. 


.  Verdict  —  Presence  of  defendant.— In  a  criminal  case  the  presence 
of  the  defendant  at  the  rendition  of  the  verdict  is  essential  to  the 
validity  of  the  conviction. 

.  Improper  utterances  op  prosecutor. —  The  utterances  of  the  prose- 
cuting attorney  in  his  closing  argument  before  the  jury,  imjiuting  to 
the  defendant  graver  crimes  than  that  for  which  she  is  being  tried,  and 
as  to  which  he  had  not  been  permitted  by  the  court  to  otfer  testimony, 
will,  if  not  restrained  by  the  court,  invalidate  the  conviction. 

.  Error  not  (;urei).— The  fact  that  the  court  warned  the  jury  against 
improi)er  utterances  which  would  probably  be  made  by  the  prosecuting 
attorney  in  bis  argument  will  not  cure  an  error  committed  by  thecourt 
in  not  restraining  imi)roi)er  uttt'rauces  made  by  that  officer  during  his 
argument. 

Error  to  Criminal  Court  of  Lake  County. 


rS"  •■ 


r-  ■',■      ■  ■  ':•>. 


GIC 


AMERICAN  CRIMINAL  REPORTS. 


Taylor  cfc  Ashton  and  E,  T.  Taylor,  for  plaintiff  in  error. 
Theo.  11.  Thomas,  attorney-general,  for  the  peoi)le. 

Beck,  C.  J.  The  plaintiff  in  error  was  tried  and  convicted  ot 
the  criminal  offense  of  receiving  stolen  property,  knowing  it  to 
have  been  stolen,  at  the  December  term,  1SS4,  of  the  criminal 
court  of  Lake  county.  The  jury  stated  in  their  verdict  that 
the  property  so  received  l>v  the  defendant  was  of  the  value  ot 
§50.  A  motion  for  a  new  trial  was  overruled,  and  thereupon 
the  court  sentenced  tlie  prisoner  to  confinement  in  the  peniten- 
tiary for  a  term  of  three  years. 

One  of  the  erroi's  assignetl  is  that  the  prisoner  was  not  present 
when  the  jur\'  returned  the  verdict  of  guilty.  It  is  a  general 
rule  of  law  that  the  prisoner,  in  cases  of  felony,  must  be  present 
at  every  step  in  the  ))roceedings,  or  the  proceedings  will  be  in- 
valid. So  important  is  this  right  that,  except  in  cases  of  mis- 
demeanor, it  cannot  be  waived  by  counsel.  If  the  i)risoner  is 
deprived  of  the  privilege  of  being  present  when  the  verdict  is 
returned,  the  verdict  must  be  set  aside  and  a  new  trial  granted, 
or  the  judgment  will  be  reversed.  Green  v.  Pii>ph\  3  Colo.. 
fis;  ,'{  AViiait.  Vx'ww.  Law,  <j^  L>091,  3304.  Exceptions  are  made 
as  to  the  necessity  for  the  continued  presence  of  the  i^risonci' 
throughout  the  entire  trial,  which  include  voluntary  absence 
from  the  court-room  for  a  few  moments,  also  such  violent 
conduct  on  the  ])art  of  defendant  as  to  render  it  necesstiry 
to  remove  him  in  order  that  the  trial  may  |)roceed.  Where 
absence  occurs  from  such  causes,  it  is  said  to  he  no  ground  oi' 
error,  provided  the  ])risoner  is  brought  into  court  before  the 
verdict  is  formally  announced.     3  Whart.  Crim.  Law,  §  3365. 

Another  error  assigned,  and  one  whicli  we  rcganl  as  fatal 
to  the  judgment  below,  was  the  refusal  of  the  court  to  grant 
the  defendant's  motion  for  a  new  trial,  l)ased  on  thegroimd  <it' 
certain  misconduct  of  the  acting  district  attornev  which  was 
prejudicial  to  the  rights  of  the  defendant.  The  record  shows 
that  the  special  district  attorney,  who  had  been  appointed  by 
the  court  to  api)ear  and  prosecute  this  case  on  bclialf  of  the 
})eople,  in  his  closing  address  to  the  jury  "  stated  and  argued 
to  the  jury  that  he  had  stated  in  the  opening  of  this  case  that 
he  expected  to  prove  that  the  defendant  had  stated,  'As  Afollie 
Gorman  was  dead,  she  did  not  J  car  a  conviction,''  but  the  court 


SMITH  V.  PEOPLE. 


617 


F  in  error. 

|)l0. 

I  convicted  ot 
knowin*;  it  to 
the  criminal 
r  verdict  that 
[  the  value  of 
nd  thereupon 
u  the  peniton- 

as  not  present 
It  is  a  general 
lust  be  present 
ngs  will  be  in- 
1  cases  of  mis- 
the  })ris()ner  is 
I  the  verdict  is 
r  trial  granted. 
r\,>j>h',  3  Colo., 
tions  are  mm\v 
if  the  prisoniT 
iintary  absence 
0  such  violent 
ir  it  necessary 
»ceed.    Where 
no  ground  of 
►art  before  the 
Law,  §  3305. 
eirard  as  fatal 
)urt  to  grant 
the  ground  <  >t' 
loy  which  was 
record  shows 
appointed  by 
behalf  of  the 
ed  and  argued 
this  case  that 
tod,  'As  ;lA>//'> 
;  but  the  court 


.•( 


had  prevented  him  fi'om  so  doing;  to  which  statement,  so 
made  by  said  attorney,  the  defendant  then  and  there  dulv  ex- 
cepted, and  protested  against  counsel  making  any  other  or 
further  statements  of  like  import,  and  that  the  jiulge  cautioned 
said  attorney  from  making  any  further  comments  of  like  im- 
port, and  further  stated  to  the  jury  that  they  should  disregard 
such  stsitement.  Tliereui)on  said  attorney  further  stated  t/iuf 
he  had  ftt I'tlnr  ea'pcvh'd  to  jtrovc,  as  dated  in  his  opciung,  that 
the  defendant  had  laurdcred  Mollie  Govnian ;  to  which  state- 
ment, so  made  by  said  attorney,  the  defendant  tlieu  and  there 
duly  excepted.  Said  attorney  further  stated,  in  his  closing  ad- 
dress to  the  jury,  that  'the  defendant  forgot  to  exp/a/'n  to  t/w 
jury  that  the  reason  shetjave  C\merle!.gh  the  sum  of  s.io  was  that 
she  cwpieted  the  enraged  miners  to  hlow  iij>  her  houxe  on  arrount 
if  the  inarder  (f  Bulkh;/'  to  which  statement,  so  made  by  the 
said  attorney,  the  defendant  then  and  there  duly  excepted." 

The  action  of  the  i)rosecuting  ollicer,  as  above  set  forth  in 
the  record,  constitutes  gross  misconduct  on  his  part,  and  a  total 
disregard  of  the  legal  rights  of  the  prisoner.  It  manifests  a 
disposition  to  ignore  the  plainest  ])rinciples  of  law  in  relation 
to  the  trial  of  criminal  offenses,  and  exhibits  contempt  for  the 
authority  and  dignity  of  the  court,  of  which  he  was  then  an 
officer.  Such  statements,  coniing  from  the  acting  district  at- 
torney at  the  time  and  in  the  manner  made,  must  have  been 
highly  prejudicial  to  the  cause  of  the  defendant.  They  were 
not  only  made  by  an  oiHcer  of  the  court,  but  they  were  made 
in  the  closing  or  last  s|)eech  to  the  jury,  when  there  was  no  op- 
portunity for  defendant's  counsel  to  criticise  or  answer  them. 
No  such  facts  had  been  received  in  evidence,  and  they  were  not 
only  wholly  outside  the  evidence,  but  totally  irrelevant  to  the 
subject-matter  of  the  trial.  The  officer  could  have  had  but 
one  motive  in  view  in  the  coui-se  pursued  by  him,  viz..  to  prej- 
udice the  jury  against  the  prisoner  by  charging  her  with  the 
commission  of  graver  crimes  than  the  offense  for  which  she 
was  being  tried.  Failing  to  get  before  the  jury  such  irrelev;int 
testimony,  ho  determined,  if  possible,  to  poison  the  minds  of 
the  jury  against  the  prisoner  by  openly  charging  her,  upon  his 
own  authority,  with  the  murder  of  the  two  persons  named.  In 
so  doing,  he  defied  the  authority  of  the  court,  violated  the  law, 
and  abused  his  privilege  as  a  public  prosecutor.    The  law  of 


rV"' 


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6iS 


AMERICAN  CRIMINAL  REPORTS. 


^$ 


the  land  guaranties  to  every  one  accused  of  crime,  whether  of 
high  or  low  degree,  whether  rich  or  poor,  a  fair  and  im[)aitial 
trial.  Certainly  it  cannot  be  said,  in  view  of  tlio  facts  and  cir- 
cumstances above  set  out,  that  the  defendant  in  this  case  re- 
ceived a  fair  and  impartial  trial  within  the  letter  and  spirit  of 
the  constitution  and  the  laws  of  this  state,  unless  it  can  be  said 
that  the  errors  appearing  in  the  I'ecord  were  cured,  so  that  the 
defendant  was  not  prejudiced  thereby.  Sc>'/j>/}s  v.  lie'dbj,  35 
Mich.,  371 ;  Txekcr  v.  llnuilker,  41  I\\  H.,  317. 

The  judge  seems  to  have  anticipated  the  conduct  of  this  offi- 
cer, and  the  nieiiiis  to  which  he  woidd  resort  to  secure  a  convic- 
tion, as  he  ai)pears  to  have  instructed  the  jury  before  the  oral 
arguments  to  the  clfect  that,  if  said  officer  should  make  state- 
ments charging  that  the  prisoner  was  of  bad  reputation,  it 
would  be  highly  improper  and  wrong  for  the  iury  to  give  tliem 
any  weight  whatever.  Tiiis  instruction,  howe  er  creditable  to 
the  court,  did  not  cure  the  error,  since  it  was  given  before  the 
arguments,  and  when  the  officer  commenced  his  attack  upon 
the  character  of  the  defendant  the  judge  failed  to  sn[)press  the 
same.  The  attorney  ajipears  to  have  continued  after  the 
court's  effort  to  restrain  him,  and  to  complete  all  the  charges 
he  desired  to  make  without  further  oj)positi(m,  save  by  the  ob- 
jections of  the  defendant.  The  criticism  on  the  action  of  the 
court  is  that  the  judge  failed  to  assert  and  maintain  the  au- 
thority and  dignity  of  the  court,  by  reason  whereof  a  prisoner 
upon  trial  was  prejudiced.  The  law  places  at  the  eomnuind  of 
all  judicial  tribunals  ample  power  and  means  to  enforce  obedi- 
ence io  their  lawful  orders  in  such  cases,  by  the  way  of  lines, 
and,  if  necessary,  imprisonment.  It  is  the  duty  of  courts  to 
require  their  proceedings  to  be  conductiid  according  to  the 
rules  of  law,  and  to  protect  the  rights  of  litigants.  That  the 
proceedings  in  this  instance  were  defective  in  the  essentials 
mentioned  is  fully  shown  by  the  record.  We  are  furtlu»r  of 
opinion  that  tlu3  (;rrors  complained  of  were  not  cured ;  for  which 
reasons  the  judgment  must  be  reversed  aiul  the  cause  re- 
manded. 

Attorney-General  Theodore  IE.  Thomas,  being  of  opinion, 
from  an  inspection  of  the  record,  that  the  prist)ner  was  not 
awarded  a  fair  and  impartial  trial,  declined  to  pn^secute  the 
case. 


BRADLEY  v.  THE  STATE. 


619 


;,  whether  of 
ncl  impartial 
facts  and  cir- 
i  this  case  re- 

and  spirit  of 
it  can  be  said 
lI,  so  that  tiic 

V.  liellly,  35 

ct  of  this  ofti- 
cnrc  a  convic- 
ofore  the  oral 
id  make  state- 
reputation,  it 
^^  to  ^ive  tliem 
f  creditable  to 
'cn  before  the 
3  attack  upon 
,o  sni)[)ress  the 
lied  after   the 
11  the  charges 
ave  by  the  ob- 
action  of  the 
aintain  the  au- 
I'eof  a  prisoner 
e  command  of 
onfoi't'C  obedi- 
way  of  fines, 
V  of  courts  to 
)rdin<i;  to  the 
iits.     Tliat  the 
the  essentials 
m;  further  of 
red;  for  which 
the  cause   rc- 

\\(r  of  opinion, 
soner  was  not 
prosecute  the 


Bradlky  v.  The  State. 

(20  Florida,  738.) 

Receiving  stolen  qoods  :  Indktmcnt  —  Duplicity. 

1.  Sufficiency  oi-  indictment.—  An  indhjtment  under  subchapter  4,  sec- 

tion 30,  (>r  tliapti-T  l(i;{7,  Laws  of  18(5H,  charging  that  the  defendant 
"  feloniously  did  hay,  roceivo  and  have,  and  did  then  and  there  aid  in 
the  concealment  of  certain  stolen  property  of,"  etc.,  knowing  the  said 
property  to  iiave  been  feloniously  stolen,  etc.,  is  good,  the  words  "and 
hiive"  t)eiiig  mere  surplusage,  and  not  liable  to  mislead  the  defendant. 

2.  Offknsks  which  may  jie  .ioinku.— Wlien  a  statute  makes  either  of  two 

or  more  distinct  acts  coiuiected  with  the  same  general  offense,  and 
subject  to  the  same  punislnnent,  indictable  as  distinct  crimes,  they 
may,  when  committeil  by  the  same  person  at  the  same  time,  be  coupled 
in  one  count,  uiul  constitute  but  one  offense. 

Writ  of  error  to  the  Circuit  Court  for  Duval  County. 
The  facts  of  the  case  are  stated  in  the  opinion. 

T.  A.  Mrl>i»nll,  for  plaintiff  in  error. 
The  AfUti'iu't/-<.reneral,  for  the  state. 

Mr.  Justice  Van  Vai.kenijukoh  delivered  the  opinion  of  the 
court : 

In  the  month  of  November,  1883,  Frank  Bradley,  the  plaint- 
iff in  error,  was  indicted  in  Duval  county  for  buying  and  re- 
ceiving stolen  goods,  etc.    The  indictment  charges  that  Frank 
Bradley,  on  the  hUh  day  of  November,  A.  D.  1883,  "five  bar- 
rels of  flour,  of  the  value  of  $7  each,  of  the  property,  goods 
and  chattels  of  the  Florida  Central  vV:  Western  Railroad  Com- 
pany, a  corpon.tion  incorporated  and  existing  under  the  laws 
of  the  state  of   Florida,  before  then  feloniously  stolen,  taken 
and  carried  away,  feloniously  did  buy,  receive  and  have,  and 
did  then  and  there  aid  in  the  concealment  of  the  same,  the 
said  Frank  I'.radley  then  and  there  well  knowing  the  said  prop- 
erty, goods  and  chattels  to  have  been  feloniously  stolen,  taken 
and  carried  away,  conti'ary  to  the  form  of  the  statute,"  etc. 
The  cause  was  ti-ied  on  a  plea  of  not  guilty  on  the  21st  day  of 
November,  and  dt^fendant  was  found  guilty.    On  the  next  day 
the  attorney  for  the  defendant  moved  in  arrest  of  judgment, 
on  the  groumls:     First,  "  that  the  offense  is  charged  in  such  a 
way  that  it  leaves  it  uncertain  what  is  intended  to  be  charged. 


RT^ISTSJ 


K 


7 


C20 


AMERICAN  CRIMINAL  REPORTS. 


m 


Second,  that  said  indictment,  in  a  single  count,  cliargcs  more 
than  one  statutory  offense,  and  is  bad  for  duplicity.  Tliird, 
that  the  facts  stated  in  the  indictment  are  not  sufficient  to 
constitute  the  offense  attempted  to  be  charged." 

The  court  overruled  the  motion,  and  the  counsel  for  the  de- 
fendant duly  excei)ted,  and  brings  his  writ  of  error  to  this 
court,  and  assigns  his  errors  as  follows: 

"The  plaiutilF  assigns  for  error  that  the  indictment,  in  a 
single  count,  joins  more  than  one  felony;  that  the  verdict  is 
general;  that  the  record  shows  that  he  has  been  convicted  on 
one  count  of  more  than  one  offense  by  the  t,  iUie  verdict ;  that 
no  legal  judgment  can  be  entered  tliereon.*' 

The  statute  under  which  this  indictment  is  found  is  chapter 
1037,  Laws  1S<»8,  subchapter  4,  section  31),  and  reads  as  fol- 
lows : 

"  Whoever  buys,  receives  or  aids  in  the  concealment  of  stolen 
money,  goods  or  pro])orty,  knowing  the  same  to  have  been 
stolen,  shall  be  punished  by  imprisonment,*'  etc. 

Mr.  Bishop,  in  his  work  on  Statutory  Crimes,  sec.  244,  says: 
"  If,  as  is  common  in  legislation,  a  statute  makes  it  punishable 
to  do  a  particular  thing  specified,  'or'  another  tiling,  'or'  an- 
other, one  commits  the  offense  who  does  any  one  of  the  things, 
or  any  two,  or  more,  or  all  of  them.  And  tlie  indictment  nuiy 
charge  him  with  any  one,  or  with  any  larger  number,  at  t\u) 
election  of  the  pleader;  employing,  if  the  allegation  is  of  more 
than  one,  the  conjunction  'and'  where  'or'  occurs  in  the  stat- 
ute." 

The  word  "have,"  as  used  in  the  indictment,  is  not  embodied 
in  the  statute,  and  may  be  treated  as  surplusage. 

"  Where  a  statute  makes  two  or  more  distinct  acts,  connected 
with  the  same  transaction,  indictable,  each  one  of  which  may 
bo  considered  as  representing  a  stage  in  tlie  same  offense,  it  has, 
in  many  cases,  been  ruled  that  they  may  be  coupled  iu  one 
count."     1  Wharton's  Crim.  L.,  sec.  390. 

In  the  case  of  Jiijrne  ct  al.  v.  The  State,  12  Wis.,  519,  C.  J. 
Dixon,  speaking  for  the  court,  says:  "The  rule  is  well  settled 
that,  where  a  statute  makes  either  of  two  or  more  distinct  acts, 
connected  with  the  same  general  offense  and  subject  to  the 
same  measure  and  kind  of  punishment,  indictable  separately 
and  as  distinct  crimes,  when  each  shall  have  been  committed 


BRADLEY  v.  THE  STATE. 


G21 


largcs  more 

;ity.     Third, 

sufficient  to 

si  for  the  de- 
jrror  to  this 

ctment,  in  a 
10  verdict  is 
jonvicted  on 
t^erdict;  that 

id  is  chapter 
reads  as  fol- 

lent  of  stolen 
o  have  been 

ec.  2-l-4r,  says : 
it  punishable 
lino-,  'or'  an- 
f  the  things, 
ietnient  may 
iniber,  at  the 
on  is  of  more 
s  in  the  stat- 

lot  embodied 

ts,  connected 
which  nuiy 
ilTense,  it  has, 
Lipled  in  one 

is.,  519,  C.  J. 
well  settled 
distinct  acts, 
ubject  to  the 
le  separately 
n  committed 


by  different  persons  or  at  different  times,  rhey  may,  when  com- 
mitted by  the  same  person  at  the  same  time,  be  coupled  in  one 
count  as  constituting  altogether  but  one  offense.  In  such  cases 
tlie  several  acts  are  considered  as  so  many  steps  or  stages  in 
the  same  affair,  and  tlie  offender  may  be  indicted  as  for  one 
combined  act  in  violation  of  law;  and  proof  of  either  of  the 
acts  mentioned  in  the  statute  and  set  forth  in  the  indictment  will 
sustain  a  conviction."     See,  also.  State  v.  Bklh/,  21  Wis.,  20i. 

In  State  v.  Xelson,  20  Maine,  329,  the  court  say :  "  The  stat- 
ute, ch.  150,  sec.  1,  makes  the  buving,  receiving  or  aidino-  in 
the  concealment  of  stolen  goods  but  one  offense,  though  it  mav 
be  committed  in  three  modes.  If  it  is  charged  in  all  three  of 
the  modes,  still  but  one  offense  is  committed,  and  only  one 
]>unishment  can  l)e  inflicted.  The  offense  is  established  by 
jiroof  of  either  of  the  modes,  but  the  penalty  is  the  same  for 
one  as  all  three  of  them.  There  is,  therefore,  but  one  crime 
charged." 

In  Stevens  v.  Commcmwcalth,  C  Metcalf,  241,  the  indictment 
alleged  the  stealing  of  certain  goods,  and  then  charges  that  the 
defendant  the  goods  so  stolen  did  receive  and  have,  and  then 
and  there  did  feloniously  aid  in  concealing  the  same.  The 
court  said  that  there  is  but  one  count  in  which  the  defendant 
is  charged,  and  there  is  but  one  offense  with  which  he  is  charged; 
that  it  is  made  but  one  offense  l)y  the  statute,  although,  accord- 
ing to  the  language  used,  it  may  be  committed  in  one  of  three 
modes;  that  is,  by  buying,  receiving  or  aiding  in  the  conceal- 
ment of  stolen  goods.  Whether  cluirged  to  be  done  in  one, 
two  or  all  three  of  the  modes  mentioned,  it  is  still  but  one 
offense,  and  the  general  finding  of  the  jury  is  that  the  offense 
was  committed  as  charged.  Coinmomvealth  v.  Nichols,  92  Mass., 
199;  lb.  V.  Eaton,  15  Pick.,  273;  lb.  v.  Hall,  85  Mass.  305. 

The  indictment  in  this  case  is  not  bad  for  duplicity.  It 
charges  but  one  offense,  although  the  offense  might  have  been 
committed  in  one  of  three  modes.  The  jury  have  found  that 
the  offense  was  committed  as  charged  in  the  indictment.  The 
penalty,  as  provided  in  the  statute,  is  no  greater  where  the  in- 
dictment charges  the  three  distinct  modes  in  one  count  than 
^vhere  but  a  single  charge,  as  of  "  buying,"  is  made  and  estab- 
lished. The  punishment  is  the  same  in  both  cases.  The  judg. 
meat  is  affirmed. 


w^ 


622 


AMERICAN  CRIMINAL  REPORTS. 


McRae  V.  The  State. 

(71  Ga.,  96.) 

Riots  :  Murder  —  Indictment  —  Evidence. 

1.  Desiukrer  does  not  lie  whex  indictsien't  is  regular  on  its  face. — 

Tliat  tlio  court  at  thotimcanindictraont  wa-sfrjvtnoil  w.as  illegally  held, 
because  it  had  not  been  adjourned  and  convened  accordinK  to  law,  was 
not  matter  whicli  could  be  taken  advantaj^e  of  l)y  denmrror,  but  by 
plea,  properly  verified,  the  indictment  being  regular  on  its  face. 

2.  RlOTEIl  RESPONSIBLE  FOR  EVERY  ILLEGAL  ACT  COMMITTED.— Where,  at 

and  U'fore  the  killing,  there  w.as  a  great  riot  by  many  jxTsons  wlio  com- 
posed a  mob,  and  the  accused  w.t-s  one  of  them,  and  took  part  in  the 
riot,  incited  it,  an<l  was  in  great  part  responsible  therefor,  he  wiis  liaV)le 
for  each  and  eveiy  illegal  act  committed  by  such  mob,  and  what  was 
said  and  done  by  the  mob  or  any  of  its  members  was  proper  evidence 
on  the  trial  of  tlu'  defendant,  unless  it  ai)|ie,ar  that  he  left  or  abandoned 
.     them  before  the  homicide  was  committed. 

Before  Judge  Fort.     Dodge  Superior  Court. 

McKae  was  indicted,  with  otliers,  for  the  murder  of  J.  Q. 
Howard.  He  demurred  to  the  indictment  on  the  ground, 
among  others,  that  the  court  at  which  it  was  returned  was  ille- 
gally convened,  being  at  the  time  to  which  the  session  of  court 
liad  been  adjourned  by  the  judge  by  telegram  to  the  clerk. 
(This  was  made  a  ground  of  demurrer,  but  there  was  nothing 
in  the  indictment  to  disclose  these  facts.) 

The  evidence  showed,  in  brief,  as  follows: 

On  August  C,  1882,  there  was  a  negro  camp-meoting  in  the 
town  of  Eastman,  and  an  excursion  train  brought  many  to  it. 
During  the  day,  a  difficulty  occurred  and  a  negro  was  killed. 
The  other  negroes  seemed  to  be  much  excited.  Defendant 
was  near  the  corpse  and  was  gesticulating.  Jle  said  that  it  was 
a  shame;  that  if  they  '"would  stand  up  to  him,"  they  would 
"have  him"  before  night.  The  crowd  gathered  round  him; 
the  body  of  the  dead  negro  was  carried  off,  and  the  crowd  went 
down  the  streets;  the  noise  increased,  and  the  mob  became 
riotous ;  pistols  were  fired  and  threats  and  loud  language  were 
used.  A  little  latter,  Howard,  whom  the  crowd  claimed  to 
have  done  the  killing,  was  seen  to  run  down  the  street,  and  the 
mob  pursued  him,  firing  pistols  at  him,  hallooing  and  threaten- 
ing to  kill  him.  Defendant  was  about  a  hundred  yards  behind 
them;  he  ran  after  them,  and  when  within  about  forty  yards  of 


McRAE  V.  THE  STATE. 


623 


ON  ITS  FACE.— 
s  illegally  hcUl, 
iiifi;  to  liiw,  was 
iiniirrer,  but  by 
I  its  fai'G. 
z\^.~  Where,  at 
Tsons  wiio  com- 
took  part  in  tlie 
iT,  he  wiis  liable 
,  and  what  was 
proper  eviil('nc(> 
ft  or  abandoned 


rder  of  J.  Q. 

the  ground, 
rned  was  ille- 
sion  of  court 
to  the  clerk. 

was  nothing 


lecting  in  the 
many  to  it. 

0  was  killed. 
Defendant 

lid  that  it  was 
"  they  would 

1  round  him; 
e  crowd  went 
mob  became 
nguago  were 
d  claimed  to 
street,  and  the 
and  threaten- 
yards  behind 
'orty  yards  of 


the  crowd,"also  firod  his  pistol.  He  joined  the  crowd  and  was 
lost  to  view.  The  mob  pursued  Howard  to  the  house  of  one 
HarroU,  insisted  on  Ijeing  admitted,  threatened  to  burn  the 
house,  searched  it,  cauglit  Howard,  pulled  him  to  the  frontdoor, 
shot  him  and  beat  him  over  the  head  with  clul)s  and  sticks 
causing  his  deatli.  On  October  11,  thereafter,  defendant  was 
caught  in  AVaycross,  about  one  hundred  and  forty-six  miles 
away;  he  was  passing  under  another  name,  and  denied  his  own 
name  when  arrested.  The  i)erson  making  the  arrest  was  not 
an  officer.  On  the  way  to  Eastman  defendant  was  given  some 
whisky,  but  the  i)erson  having  him  in  charge  stated  that  it  was 
not  enough  to  make  him  drunk.  After  this  he  offered  to  such 
person  J?2<>  to  release  him. 

Defendant  offered  no  testimony.  In  his  statement  he  denied 
that  he  was  one  of  the  mob,  or  that  he  used  a  fictitious  name, 
and  said  that  if  he  offered  to  pay  for  a  release  he  was  drunk. 

The  jury  found  the  defendant  guilty  as  principal  in  the  sec- 
ond degree,  and  recommended  that  he  be  imprisoned  for  life. 
He  moved  for  a  new  trial  on  the  following  grounds: 

(1),  (2)  IJecause  the  verdict  was  contrary  to  law  and  evi- 
dence. 

(3),  (4)  I'ecause  the  court  overruled  the  demurrer  to  the  in- 
dictment. (In  one  ground  it  is  called  a  demurrer;  in  the  other, 
a  plea  in  bar.  From  the  record  it  a])pears  that  the  first  was 
correct.) 

(5)  Because  the  court  admitted  evidence  that  cries  of  "kill 
him,"  "  we  will  have  his  head,"  etc.,  were  uttered  by  members 
of  the  crowd;  the  witnesses  were  unable  to  state  what  indi- 
viduals uttered  the  cries. 

(6)  Because  the  court  admitted  evidence  of  the  change  of 
name  and  offer  of  defendant  to  pay  for  his  release,  it  appear- 
ing that  this  information  was  obtained  while  defendant  was  in 
custody  and  after  being  furnished  with  whisky  by  the  party 
having  him  in  charge. 

The  motion  was  overruled  and  defendant  excepted. 

J.  W.  Ilaygood,  T.  P.  Loyd  and  L.  A.  Hall,  for  plaintiff  in 
error. 

G.  Anderson,  attorney-general;  C.  C.  Smith,  solicitor-general, 
by  Harrison  dt  Peebles,  and  I).  21.  Rohcrts,  for  the  state. 


^i 


>^ 


024r 


AMERICAN  CRIMINAL  REPORTS. 


Dlandfort),  Justice.  1.  The  plaintiff  in  error  was  indicted 
for  the  murder  of  J.  Q.  Howard  on  the  <)th  of  August,  1S>^2. 
The  indictment  was  demurred  to  on  several  grounds.  First, 
because  the  court,  at  the  time  the  indictment  was  found,  was 
illegally  held,  as  the  same  had  not  been  adjourned  and  con- 
vened agreeably  to  law.  Matter  of  this  kind  could  not  be  taken 
advantage  of  by  demurrer,  but  by  plea  properly  verified.  The 
indictment  contained  nothing  and  omitted  nothing  which  could 
be  taken  advantage  of  by  this  demurrer;  so  the  court  was 
right  in  overruling  this  demurrer. 

The  indictment  was  further  demurred  to  on  several  grounds 
stated  in  the  record.  Upon  looking  into  these  grounds  of  de- 
murrer, and  at  the  indictment,  it  is  certain,  full  and  particular, 
coming  fully  up  to  the  requirements  of  the  common  law  and  sec- 
tion 4«!28  of  the  code  of  (Te(«'gia,  which  says  that  "every  in- 
dictment or  accusation  of  the  grand  jury  shall  be  deemed 
sufficiently  technical  and  correct  which  charges  the  offense  in 
the  terms  and  language  of  this  code,  or  so  plainly  that  the 
nature  of  the  offense  charged  may  be  easilv  understood  by  the 
jury." 

•2.  In  tliis  case  it  appears,  from  the  evidence,  tliat  at  and  be- 
fore the  killing  of  the  deceased,  tliere  was  a  great  riot  by 
many  persons  who  composed  the  mob;  it  was  shown  that  the 
accused  was  one  of  the  mob;  that  he  took  part  in  the  riot, and 
incited  it,  and  was  in  great  part  responsil)le  therefor.  He 
was  liable  for  all  and  every  illegal  act  committed  by  the  mob, 
and  what  was  said  and  done  by  the  mob  or  any  of  them  was 
proper  evidence  to  be  submitted  to  the  consideration  of  the 
jury  upon  the  trial  of  this  defendant.  31  Ga.,  23G;  Lord 
George  GorJon''s  Case,  Howell's  State  Trials,  vol.  21,  pp.  480 
to  589;  2  Doug.,  590;  17  Ga.,  356.  Tliere  was  no  evidence 
submitted  by  the  prisoner  showing  that,  after  he  joined  the 
rioters,  he  left  them  and  abandoned  them  before  the  homicide 
was  committed. 

3.  After  the  prisoner  was  arrested,  the  evidence  shows  that 
the  l)arty  making  the  arrest  gave  the  prisoner  spirituous  liquor, 
and  after  this  prisoner  offered  the  arresting  party  820  to  let 
him  escape.  This  conduct  of  the  party  making  the  arrest,  or 
of  any  other  party,  is  highly  reprehensible,  and  such  conduct 
cannot  but  meet  with  the  condemnation  of  all  right-thinking 


was  indicted 
iViigust,  1S^^2. 
mmls.  First, 
Ls  found,  was 
ned  and  con- 

I  not  bo  taken 
verified.  The 
5  wliicli  could 
lie  court  was 

veral  grounds 
grounds  of  de- 
,nd  particular, 
n  law  and  soc- 
lat  "  every  in- 

II  l)e  deemed 

the  offense  in 

ainly  that  the 

jrstood  by  the 

hat  at  and  be- 
great  riot  by 
lown  that  the 
11  the  riot,  and 
therefor.     lie 

by  the  mob, 

of  them  was 
Bration  of  the 
I.,  230;  Lord 
ol.  21,  pp.  4SG 

no  evidence 
he  joined  the 

the  homicide 

ce  shows  that 
rituous  liquor, 
irty  820  to  let 
the  arrest,  or 
such  conduct 
right-thinking 


^"W' 


. 


HANSON  V.  STATE. 


626 


men.  The  statement  of  the  accused,  his  offer  to  pay  $20  for 
his  release,  was  properly  admitted  in  evidence  bv  the  court 
below. 

4.  The  verdict  of  the  jury  was  in  accordance  with  the  evi- 
dence,  and  there  was  no  error  in  the  court  below  in  refusing 
the  new  trial  upon  the  several  grounds  taken  in  the  motion. 

Judgment  affirmed. 


Hanson  v.  Statr. 

(43  Oliio  St.,  376.) 

EOBBEUT:  Insh-udion  — Assault  and  battery  —  Arrai(fnment. 

1.  Violence.— Tlie  violence  which  is  essential  to  the  crime  of  robbery 

must  Iw  concomitant  with  the  taking  of  property  from  the  person  of 
another. 

2.  The  assa(-[.t.— On  the  trial  of  a  person  indicted  for  the  crime  of  as- 

sault with  intent  to  rob,  it  is  error  to  refuse  to  charge  that  violence,  in 
order  to  constitute  the  crime,  must  not  be  sulise(|uent  to  the  attempt  to 
take  the  property. 

3.  Conviction  of  assault  and  battery.— Indictment  for  an  assault  with 

intent  to  rob  will  support  a  conviction  fur  a.ssault  and  battery,  and  it  is 
eiTor  to  refuse  to  so  charge. 

4.  Ahrakjnment.— The  record  of  a  conviction  for  crime  must  show  that 

the  defendant  was  arraigned  on  the  indictment. 

Error  to  the  Court  of  Common  Picas  of  Greene  County. 

The  plaintiff  in  error  was  indicted,  tried  and  convicted  of 
tiie  crime  of  assault  with  intent  to  rob,  at  the  January  term, 
1885,  of  the  court  of  common  pleas  of  Greene  county.  The 
testimony  on  the  trial  tended  to  show  that  the  alleged  crime 
was  committed  in  attempting  to  detach  and  remove  a  diamond 
shirt-stud  from  the  person  of  the  prosecuting  witness,  who 
was,  at  the  time  of  the  assault,  standing  in  a  crowd,  and,  feel- 
ing a  sudden  jerk  at  his  shirt  bosom,  reached  out  his  hand  and 
caught  the  jilaintiff  in  error,  who  struggled  to  release  himself 
from  the  grasp  of  the  witness.  The  shirt  was  torn  by  the  jerk, 
but  the  stud  was  not  detached. 

Z'!  K  Wright  and  M.  R.  S/iodgnm,  for  plaintiff  in  error. 
JamcH  Lairrcnce^  attorney-general,  for  the  state. 
Vol.  V  — 40 


\VK^ 


62*? 


AMERICAN  CRIMINAL  REPORTS. 


m 


Mcli.vAiNE,  C.  J.  Several  errors  are  assigned,  but  we  think 
it  unnecessary  to  notice  any  other  than  those  relatin'^  to  the 
refusal  of  the  court  to  charge  the  jury  as  requested  by  defend 
ant  below.  The  court  refused  to  charge  "  that  violence,  in 
order  to  constitute  an  assault  with  intent  to  rob,  must  not  be 
subsequent  to  the  attempt  to  take  the  pro]ierty."  This  re(iue8t 
should  liavo  been  given.  There  being  no  putting  in  fear,  vio- 
lence is  an  essential  ingredient  in  the  crime  of  robl)ery.  We 
find  notliing  in  the  charge  as  given  which  can  be  considered 
as  a  fair  equivalent  for  the  request.  The  testimony  tended  to 
show  that  after  the  taking  of  the  pro])erty  had  been  abandoned 
by  the  defendant  a  struggle  to  avoid  an  arrest  ensued.  How- 
ever violent  this  struggle,  it  did  not  characterize  the  attempt 
to  take  the  diamond  stud.  The  jury  should  have  beiMi  plainly 
told  that  the  charge  of  assault  with  intent  to  rob  by  violence 
was  not  proved  by  subsequent  violence  used  to  avoid  an  arrest. 

The  court  also  refused  to  charge  "that  if  the  jury  find  that 
the  defendant  had  not  used  such  force  and  violence  as  makes 
him  guilt}''  of  assault  with  intent  to  rob,  he  may  be  found 
guilty  of  assault  and  battery."  If  the  jury,  contrary  to  law, 
had  been  instructed  that  a  conviction  of  the  defendant  for 
assault  and  battery  only  could  not  be  had  under  that  indict- 
ment, his  danger  of  a  conviction  for  the  higher  crime  named 
in  the  indictment  would,  no  doubt,  have  been  increased. 
Uoimt'd  V.  State,  25  Ohio  St.,  399;  JMler  v.  State,  23  Ohio  St., 
582. 

True,  the  court  had  told  the  jury  in  the  general  charge 
"  that  if  it  was  only  an  attempt  to  commit  larceny  of  the  prop- 
erty from  the  person  by  snatching  the  pin,  then  there  would 
be  no  crime  except  assault  and  battery."  And,  again,  the 
court  had  said  to  the  jury,  "  counsel  for  defendant  suggests 
that  the  defendant  may  have  simply  intended  to  unfasten  the 
pin,  and  then  steal  it,  without  letting  Miller  (the  prosecuting 
witness)  know  what  he  was  doing.  If  this  were  so,  I  instruct 
the  jury  that  the  defendant  would  not  be  guilty  of  anything 
beyond  an  assault  and  battery." 

It  was  probably  the  intention  of  the  court  that  the  jur\' 
should  understand  that  a  conviction  of  the  less  offense  might 
be  had  in  the  jiending  action,  but  it  was  not  so  stated,  and  it 


ut  we  think 
iting  to  the 
I  by  defend 
violence,  in 
must  not  he 
This  request 
in  fear,  vio- 
l)l)cry.     We 
e  considered 
ly  tendtd  to 
n  abandoned 
sued.     IIow- 
the  attempt 
beiMi  plainly 
3  by  violence 
oid  an  arrest, 
ury  find  that 
nee  as  makes 
lay  be  found 
itrary  to  law, 
lofendant  for 
r  that  indict- 
crime  named 
en  increased. 
!,  23  Ohio  St., 

ncral  charge 
y  of  the  prop- 
there  would 
d,  again,  the 
hint  suggests 
unfasten  the 
e  prosecuting 
so,  1  instruct 
y  of  anything 

that  the  jury 
offense  might 
stated,  and  it 


("OAl.MOXVVKALTH  t-.  INTOXICATING  LlgUORS.  627 

maybe  that  the  ivfusal  to  charge,  as  requested,  misled  the  jury, 
especially  as  no  reason  for  the  refusal  was  given. 

The  record  before  us  does  not  show  that  tlif^  defendant  was 
arraigned  on  the  indictment  before  trial,  Tlio  record  is  de- 
fective in  this  particular. 

Judgment  reversed. 


Commonwealth  v.  Intoxicating  Liquoes. 

(140  Mass.,  287.) 

Search  warrant:  Descrljttion  of  premises. 

DESCRnPTTON  OF  PRKMiSES.—  A  Koarrh  warrant,  which  described  the  prem- 
ises to  be  searched  as  "  a  certain  building,  the  cellar  under  the  same, 
and  the  out-buildings  within  the  curtilage  thereof,  situate,"  etc.,  does 
not  authorize  the  search  of  another  building  situated  on  an  adjoining 
lot,  separated  by  a  fence,  but  connected  by  a  covered  passage-way. 

E.  J.  Sherman.,  attorney-general,  for  the  commonwealth. 
John  W.  Corcoran  and  Ilerhert  ParJcer,  for  claimant. 

Devkns,  J.  The  comphiint  and  warrant  described  the  prem- 
ises to  be  searched  as  "  a  certain  building,  the  cellar  under  the 
same,  and  the  out-buihlings  within  the  curtilage  thereof,  situate 
on  the  southwest  corner  of  Grove  and  Beacon  streets,  so  called, 
in  said  Clinton,  and  occupied  by  said  Patrick  H.  Morrison  as  a 
store,  dwelling-house,  and  place  of  common  resort  kept  therein." 

The  premises  actually  searched  consisted  of  a  basement  under 
a  building  at  the  corner  of  Grove  and  Beacon  streets,  a  covered 
passage-way  by  which  access  was  had  to  a  basement  under 
another  build mg,  and  the  latter  basement.  These  buildings 
were  conveniently  known  at  the  trial  as  A.  and  B.,  and  it  was 
in  the  basement  of  the  latter  that  the  liquors  claimed  were 
seized.  A  small  quantity  was  seized  which  was  found  in  tiic 
passage-way,  but  we  do  not  understand  that  this  is  here  in  con- 
troversy. If  so,  the  description  of  the  premises  would  ha 
clearly  sufficient  to  include  this  passage-way,  and  would  justify 
the  seizure  of  the  liquors  there  found,  as  this  was  certainly  an 
out-building  immediately  connected  with  the  building  A. 


62S 


AMKIMCAN   CHIMIN  AT.  REPORTS. 


It  was  rulfd  at  tlio  trial  that  "tlio  complaint  and  warrant 
covered  both  of  said  hnildinys."  The  correctness  of  this  I'liliny" 
depends  on  the  in(|uirv  whether  these  Imiidin^s  conld  be  held 
to  bo  so  connected  and  identified,  each  with  the  other,  as  legally 
to  constitute  but  one,  or  whc^ther  tiie  buildin;jf  called  "  15,"  coidd 
bo  held  by  le^al  int(M)dnient,  from  its  nature,  situation  and  use, 
1o  bo  out-buil<lin_i^  to  A. 

TIk;  buildin<,^s  A.  and  ]i.  had  each  distinct  access  to  their 
biisemcnts  from  l»eacon  street.  The  upper  portions  of  each 
were  api)roach(!d  from  Grove  street,  on  a  level,  by  reason  of 
the  different  grade  of  this  street,  which  was  higher  than  that 
of  I'eacon  street.  The  building  A.  was  a|)proached  directly 
therefrom  by  ))a9sing  arouiul  the  south  end  of  A.  The  stories 
of  each  budding  above  tlio  basement  were  occupied  by  several 
tenants  other  than  the  occupant  of  the  basement.  There!  was 
a  retaining  wall  about  eight  feet  from  Heacon  street,  in  the 
space  between  the  two  buildings,  extending  from  ono  to  the 
other,  which  supported  the  land  on  the  Grove  street  side.  A 
passage-way,  one  side  of  which  was  formed  by  this  wall,  and 
the  other  side  and  the  roof  of  which  wore  made  of  rough 
boards,  and  which  was  also  pi'ovi<led  with  an  entrance  on 
Heacon  street,  extended  from  A.  to  1>.  With  the  distinct  modes 
of  access,  use  and  construction  described,  the  fiict  that  they 
were  connected  by  this  passage  could  not  make  of  them  the 
same  building,  so  that  IJ.  could  be  hehl  to  be  the  building 
described  as  at  the  corner  of  Grove  and  Beacon  streets.  Nor 
could  it  be  hold  to  be  "an  out-building  within  tho  curtilage 
thereof."  "('urtilage"  has  been  heretofore  defined  to  be  tiie 
fence  or  inclosure  of  a  piece  of  land  around  a  dwelling-house, 
usually  including  the  buildings  occu])ied  in  connection  there- 
with. Com.  V.  Bai'ucij^  lo  (Jush.,  4.s().  Tlici'o  was  in  this  case 
no  common  inclosure  within  which  the  two  budilings  stood, 
nor  was  the  building  itself  of  that  class  ordinarily  understood 
as  an  out-building,  which  is  one  that,  from  its  character,  is  to 
be  used  in  connection  with  the  main  buihling,  and  may  thus  he 
held  to  be  a  parcel  thereof,  even  if  not  immediately  attached 
thereto,  as  the  barns,  sheds,  and  wood  and  store  houses  belouL;- 
ing  to  a  dwelling-house.  In  all  respects  adapted  for  independ 
ent  use,  and  actually  thus  used,  except  so  far  as  the  basement 
was  concerned,  the  building  J3.  was  not  made,  nor  could  it 


SEELKS  V.  STATE. 


<1-JD 


an<l  warrant 
of  this  ruling' 
ould  bo  hold 
icr,  as  loyally 
hI  "  r.."  could 
it  ion  and  uso, 

;ccss  to  tlieir 
tions  of  each 
,  by  reason  of 
lor  than  that 
chod  diroctly 
.     The  storJPd 
ie<l  by  several 
t.     There  was 
\  street,  in  tlie 
om  one  to  the 
itreet  side.     A 
this  wall,  and 
laile  of  rou;^h 
1  entrance  on 
distinct  modes 
"net  tliat  they 
3  of  them  the 
the  buildin<,' 
streets.     Nor 
the  curtila<,'e 
ine<l  to  be  the 
wellin<^-house. 
inection  there- 
as  in  this  cas(» 
luldings  stood, 
ily  understuoil 
haracter,  is  to 
id  may  thus  he 
iitely  attachet! 
houses  belt >n^- 
1  for  indcpeiid 
the  basement 
nor  could  it 


properly  be  desci-ibed  as,  iin  out-hiiildinfj.  hocauso  a  rou-h  jjas- 
sage-way,  temporary  in  its  sti'iictmc,  allorded  access  to  it  from 
A.  The  instruction  of  t]i.«  l.-anied  jii(l,.e  was  on  this  i^int, 
therefore,  erroneous.    Exce[)tions  sustained. 


Seelio  v.  State. 

(43  Arkiinaas,  00.) 

SAnnATII-nUEAKINO. 

Doon  LEFT  PARTIALLY  oi'KX  OH  UNLOCKED.— To  commit  the  offpilKO  of 
Siibhiitli-bioiikiiiK  by  kooping  a  store  door  open  on  Sunday,  it  is  not 
neccssjiry  to  kcc^p  it  so  diiciicd  as  to  indiiro  customoviH  to  enter  and 
trade.  It  is  sulHcient  if  tlu!  door  is  jjartiully  open  or  intentionally  left 
unlocked,  so  that  any  person  may  enter  as  readily  as  if  left  open.  Or 
if  it  is  opened  to  the  kiKickint,' of  aslninj,'er,  and  he  mhnitted  or  in- 
vited in,  tins  is  a  keepinj,'  opeii  within  the  i)roiiil)ition  of  the  statute. 

A|  lefil  from  Phillips  Circuit  Court.  Hon.  M.  T.  Sanders, 
Circuit  Jii'lf^e. 

Thweatt  cc  Qunrhft,  for  appellant. 
Mooi'e,  attorney-general,  co/Uni. 

Smitu,  J.  Scolig  was  charged  by  aflidavit  before  the  mayor 
of  Helena  with  Sabbath-breaking,  by  keeping  open  the  door 
of  his  store.  He  was  convicted  and  lined  there,  and  again  on 
a])peal  to  the  circuit  court. 

He  moved  for  a  new  trial  for  misdirection  and  because  the 
verdict  was  contrary  to  the  evidence. 

Stansell,  the  city  marshal,  swore  that  he  saw  a  side  door  of 
the  store  open  on  a  certain  Sunday  shortly  before  the  prosecu- 
tion was  begun,  and  saw  a  boy  ])ass  out  with  a  bundle.  An- 
other witness  went  to  the  store  in  company  with  Sexton, 
defendant's  hook-keeper,  found  the  door  closed  but  not  looked; 
entered  and  remained  five  or  ten  minutes.  Sexton  stayed  to 
write  letters;  and  while  Sexton  was  within  a  negro  knocked 
at  the  door  and  was  admitted.  Sexton  also  went  out  of  the 
side  door,  leaving  it  open,  and  walked  across  the  street  to 
speak  to  his  empk)yer. 


■?5r 


w 


630 


AMERICAN  CRIMINAL  REPORTS. 


its- 


The  court  charged  as  follows : 

1.  If  the  jury  find  from  the  evidence  that  the  defendant 
kept  his  store  open  on  Sunday  as  alleged,  within  twelve  months 
uext  before  the  commencement  of  the  prosecution,  or  that  any 
door  thereof,  through  whicli  the  public  might  pass,  or  had  the 
ofjportunity  of  doing  so,  was  kept  or  left  open  on  Sunday,  he 
would  be  guilty  as  charged. 

2.  If  the  jury  believe  from  the  evidence  that  a  door  of  the 
defendant's  store  was  not  kei)t  or  left  wide  op^a,  but  that  it 
was  partially  open,  or  that  the  locks  or  fasten. ugs  were  inten- 
tionally left  unsecured,  so  that  any  person  desiring  to  do  so 
might  enter  the  store  as  readily  as  though  it  wei'e  standing 
open,  the  defendant  would  be  guilty. 

3.  If  any  j)erson,  who  is  a  stranger,  goes  to  a  store  on  Sun- 
day, and,  upon  knocking,  the  door  is  immediately  opened  and 
such  person  admitted  or  invited  into  the  store,  this  is  a  keeping 
open  within  the  prohibition  of  the  statute. 

The  following  prayers  were  denied: 

Keeping  open  a  store  in  contemplation  of  law  is  such  a  keep- 
ing open  as  would  induce  customers  to  enter  for  the  purpose 
t>f  trade  or  trafli  3 ;  and  under  this  charge  it  is  necessary  to 
prove  that  the  «lef  Mulant  did,  in  fact,  keej)  open  his  store;  and 
the  mere  fact  that  the  defeiulant's  door  was  opened  for  a  few 
minutes  and  was  not  kept  open  for  any  length  of  time,  nor  for 
the  purpcjse  of  inducing  trade  or  traific,  is  not  sutlicient  proof 
of  guilt. 

If  the  jury  find  tiiat  the  defendant  was  not  in  the  store  and 
gave  no  directions  to  any  one  as  to  kee[)ing  the  door  open,  or 
that  defendant  was  not  present  at  the  time  and  knew  not  that 
the  door  was  open,  he  was  not  resi)onsil)le  for  its  h(Mng  oj)oii. 
Wo  i)erceive  no  objections  to  the  charge  of  the  coui't.  And  as 
to  tiie  prayers  refused:  "Whei'C  an  net  is  in  itself  iiidiirerent, 
and  only  becomes  criminal  when  done  with  a  particular  intent, 
there  the  intent  must  be  jiroved.  I?ut  if  the  act  be  unlawful, 
as  to  keep  open  a  store  on  Sunday,  the  law  implies  the  crimi- 
nal intent  and  proof  of  justilication  or  excuse  must  come  from 
the  defendant,  (lantt's  Dig.,  1018;  Shover  v.  State,  10  Ark., 
259;  DiiUou  v.  State,  id.,  299. 

The  last  prayer  was  inappheable  to  the  state  of  facts  in  proof. 
No  testimony  had  been  offered  as  to  what  directions,  if  any, 


STATE  V.  WALLER. 


681 


le  defendant 
velve  months 
I,  or  that  any 
s,  or  had  the 
n  Sunday,  he 

door  of  the 
,1,  but  that  it 
'S  were  inten- 
ing  to  do  so 
-ere  standing 

store  on  Sun- 
y  opened  and 
is  is  a  keeping 


is  such  a  keep- 
ir  the  purpose 
s  necessary  to 
his  store ;  and 
.med  for  a  few 
f  time,  nor  for 
utlicient  proof 

the  store  and 
door  ojjon,  or 
knew  not  that 
ts  being  open, 
ourt.  And  as 
■If  iiidiirercnt, 
•ticiilar  intent, 
t  bo  unlawful, 
lies  the  crimi- 
ust  come  from 
^State,  10  Ark., 

facts  in  proof, 
actions,  if  any, 


the  accused  had  given  upon  the  subject  of  keeping  open  on 
Sunday,  and  liis  own  witness  proved  he  was  just  across  the 
street  at  the  time  the  door  stood  open. 

Certainly  there  is  no  total  lack  of  evidence  to  sustain  the 
verdict.     Compare  Bennet  v.  State,  13  Ark.,  091. 

Affirmed. 


State  v.  Wallkb. 

(43  Arkansas,  381.) 

Slander  :  Misdemeanor  —  Felony  —  Alternative  punishments. 

1.  Under  tlu'  slander  act  of  1869,  slander  is  a  felony,  and  not  a  misde- 
meanor, and  it  is  not  left  to  the  court  or  jury  to  say  winch  it  is. 

'2.  The  lej!;islacure  has  the  rij?ht  to  provide,  in  felony  cases,  alternative 
punishments,  to  be  left  at  the  discretion  of  the  court,  of  such  nature 
as  belong  to  misdemeanors ;  and  this  discretion  to  mitigate  the  punish- 
ment does  not  alter  the  nature  of  the  crime. 

Appeal  from  Lafayette  Circuit  Court.  Hon.  C.  E.  Mitchell, 
(Circuit  Judge. 

0.  B.  2Ioore,  attorney-general,  and  0.  D.  Scott,  for  plaintitf 
ill  error, 

Eakin,  J.  Waller  was  indicted  by  the  grand  jury  for  slan- 
<ler,  under  the  act  of  March  19,  18(i9.  They  charge  him  with 
the  use  of  certain  oi)probrious  words,  regarding  a  married 
woman,  which  in  their  common  acceptation  convey  an  imputa- 
tion of  adultery.  A  demurrer  to  the  indictment  was  sustained 
by  the  court  upon  the  expi-oss  grounds  that  the  law  was  uncon- 
stitutional and  void.     The  state  sues  a  writ  of  error. 

The  law  is,  pcrlinps,  unparalleled  in  civilized  legislation,  and 
Ihids  its  e.\)»lanation  in  the  fierce  passions  and  civil  commotions 
of  the  j)erio(l  which  succeeded  the  late  civil  war.  It  provides 
tliat  any  one  shall  be  deemed  guilty  of  slander,  and  punished 
by  indictment,  who  shall  falsely  utter  or  publish  words  \v-hich 
in  their  ordii'.ary  acceptation  shall  amount  to  charge  any  one 
with  havin<2:  been  yuiltv  uf  fornication  or  adultery:  or  to 
charge  an V  one  with  haviu'''  sworn  faiselv,  whether  with  ref- 
crence  to  a  judicial  proceetling  or  not ;  or  to  chavge  any  person 


AMERICAN  CRIMINAL  REPORTS. 


a;«l 


with  having  been  guilty  of  any  other  crime  or  misdemeanor 
whatever;  or  with  having  been  guilty  of  any  other  dishonest 
business,  or  official  conduct  or  transaction,  the  effects  of  which 
would  be  to  injure  the  credit,  business  standing,  or  to  bring 
into  disrepute  the  good  name  or  cliaracter  of  such  pei-snn  i^m 
slandered.  All  such  slantler  was  expi'ossly  made  civilly  actioiw 
able,  and  it  was  further  declared  that  it  should  be  a  crime,  to 
be  punished,  on  conviction,  by  imprisunnumt  "in  tlie  peniten- 
tiary house  of  this  state,  at  hard  labor,  for  a  toi'in  of  not  less 
than  six  months,  nor  more  than  three  years,"  or  that  the 
offender  should  be  ''  fined  not  less  than  fifty  nor  moi-e  than 
three  thousand  dollars,  or  both  fine  ami  imprisonment  may  be 
imposed,  at  the  discretion  of  the  court;  and  any  person  so 
convicted  and  punished  by  fine  only,  if  such  fine  bo  not  paid 
at  once,  be  confined  in  tlio  penitentiary  hoiuic  of  this  state,  at 
hard  labor,  until  sucli  fine  be  ])aid,  at  the  rate  of  $2  a  day." 

This  statute,  in  its  criminal  aspect,  has  lain  dead  in  our 
statute  book  for  more  than  fifteen  years  since  its  passage,  and 
is  now  first  challenged  regarding  its  right  to  be  tliere,  under 
our  constitution.  It  was  once  alluded  to,  arg^inulo^  by  Mr. 
Chief  Justice  English  in  the  civil  case  of  Rop  and  inlf'c  v.  Chit- 
woofj,  30  Ark.,  210.  but  it  was  not  at  all  necessary  to  do  so,  as 
the  question  in  that  case  was  whether  the  words  used  were 
actionable,  and  they  had  been  made  so  by  an  act  of  1837. 
Gould's  Digest,  ch.  101,  sec.  1.  The  validity  of  tlie  s^^atute 
now  in  judgment  made  no  point  and  had  no  importance  in 
that  case. 

A  "felony"  under  our  law  is  defined  to  be," an  offen'^e  of 
which  the  punishment  is  death,  or  confinement  in  the  peniten- 
tiary." All  other  crimes  are  misdimieanors.  Then'  are  of  a 
distinct  grade  and  nature,  and  their  boundaries  must  bo  de- 
fined by  law.  The  same  acts  cannot  at  the  same  time  consti- 
tute a  felony  and  a  misdemeanor.  Tiiey  cannot  co-exist  as  the 
result  of  one  and  the  same  transaction.  The  crime  must  be 
one  or  the  other,  not  both,  or  either.  It  results  from  the  dif- 
ferent natures  of  these  classes  of  crime,  under  common  law 
rules,  and  from  their  different  })unishments,  and  the  divers 
modes  of  proceeding  against  offenders,  says  Mr.  I'ishop,  thitt 
the  same  act  cannot  be  both  one  and  the  other.  Statutory 
Crimes,  sec.  174.     Tf  the  construction  and  effect  of  the  act  Im-. 


STATE  ,'.  \VALL1:R. 


iuV.] 


isdemeanor 
r  dishonest 
•ts  of  which 
or  to  brinj]^ 
1  person  s" 
villy  acliot\- 
!  a  crime,  to 
tlic  peniten- 
of  not  less 
or  that  the 

more  tluin 
iicnt  may  be 
y  person  so 
bo  not  paid 
this  sliito,  at 
S2  a  day." 
dead  in  our 
passage,  and 
there,  under 
mflo,  by  Mr. 
■wtft'  V.  Chit- 
'  to  do  so,  as 
Is  used  were 
act  of  1837. 

the  statute 
nportanoe  in 

an  offence  of 
the  peniten- 
'liey  are  of  a 
must  be  de- 
>  time  consti- 
o-exist  as  the 
me  must  be 
"rom  the  dif- 
common  hiw 
d  the  divers 
Jishop.  that 
Statut(ir\' 
of  the  act  \^<\ 


as  held  by  the  circuit  jud-c,  "that  it  loaves  to  tlie  discretion 
of  the  jury  tlie  designiition  of  the  crime  of  the  defendant, 
whether  the  same  sliould  be  a  felony  or  a  misdoiuonnor,"  then 
it  would  be  of  <pu>stionable  validity,  as  no  such  powers  can  be 
intrusted  to  juries.  It  will  be  soon,  however,  that  the  power 
of  determining  whether  the  crime  shall  be  piuiisluid  as  a  felony 
or  a  misdemeanor  is  attempted  to  be  vested  in  the  court. 
The  same  objection  may  be  made  to  that  view  of  the  act,  and 
the  same  question  arises:  Does  it  deline  the  nature  and  grade 
of  the  ci'inie? 

In  l\lain('.  a  statute  defined  a  "felony"  to  include  everv 
offense  ])iniishable  with  death  or  by  imiti-isonment  in  the  state 
prison."'  Another  act  ])rovidod  that  whoever  should  use  any 
instrument  with  inl(Mit  to  destroy  a  child  of  which  a  woman 
might  be  ]>regnant,  whether  (piick  or  not,  and  should  d(>stroy 
the  child  before  its  birth,  sluMild  be  punished  by  imprisonuient 
in  the  stat(^  prison  not  moi-e  than  live  years,  or  by  lino.  etc. 
One  Smith  was  indicto(l  ;nid  convictcMl  of  murder  for  havin^ 
caused  the  death  of  a  woman,  unintentionally,  in  an  effort  to 
procure  such  an  abortion.  It  was  contcnuled  for  him  and  con- 
ceded by  the  court,  on  comnuni  law  pi-inciples,  that  if  he  had 
intended  only  to  commit  a  misdemean<ir,  the  crime  would  be 
only  uuiuslaught(!r.  It  was  furlher  contended  that  the  offense 
which  he  had  intended  to  commit  was  only  a  misdemeanor, 
inasmuch  as  it  was  not  of  course  punishable  by  im[)ris()nmont 
in  the  state  prison,  but  might  be  pmiishod  by  line.  To  this 
view  the  court  did  not  assent,  holding  that  ho  might  be  properly 
convicted  of  murder  on  the  ground  that  every  oUVnse  was 
felony  which  was  n<(J>lr  to  tiie  higher  ])unishnuMit.  ?>'i  Maine, 
309.  The  case  was  reversed  upon  other  grounds  upon  a  writ 
of  error,  but  the  suprenu!  court  in  doing  so  roaflirmed  the  doc- 
trine above  announced,  as  soumi,  holding  that  the  conviction 
for  the  murder  of  the  mother  would  have  been  proper,  if  the 
indictment  had  properly  ciiarged  the  intent  to  commit  the 
statutoi'V  crime.     Smith  v.  Sluf,-,  '^'^  Miiine,  48. 

The  same  (piestion,  in  a  slightly  changed  aspect,  was  again 
presented  in  that  state,  in  the  case  of  Sf(ff<>  v.  Maijlcrry,  48 
Maine,  21H.  A  statute  had  declared  it  a  conspiracy  for  two  or 
more  ])ersons  to  eonspiri;  and  agree  wrongfully  and  wickedly 
to  commit  any  crin\e  punishable  by  hiiju'/suiii/ifnt  hi,  t/ic  state 


•  m   ':   '^H 


«;;{4 


AMERICAN  CRIMINAL  REPORTS. 


L'J 


I' 


Si 

IV 

1     V 


prison.  Another  act  had  provided  that  whoever  should  obtain 
goods,  etc.,  by  fiilso  pretenses,  should  be  punished  by  imprison- 
ment (in  the  state  prison  being  understood),  not  more  than 
seven  years,  or  by  line  not  exceeding  $500.  It  was  held  that 
the  Climes  referred  to  in  the  act  first  above  quoted  meant 
such  as  were  liaUe  to  be  thus  punished,  and  that  defeiulants 
cume  within  its  range  by  a  combination  to  cheat  and  defraud 
against  the  provisions  of  the  second,  although  the  crime  which 
they  intended  lulyht  have  been  punished  by  line  alone. 

A  siujilar  docti'ine  has  obtained  in  Missouri,  although  thoir 
statutory  definition  of  a  felony  seems,  from  the  reported  cases, 
to  include  all  offenses  which  "may'' be  punished  by  impris- 
onment in  the  penitentiary.  They  are  not  authorities,  tliere- 
fore,  on  the  point  under  discussion,  but  may  be  noticed,  en 
/jaamiit,  somewhat  digressively,  as  bearing  on  tliis  case  in  an- 
other way.  It  is  held  tliere  not  only  that  ofl'enses  wliich  vKtij 
be  punished  by  the  penitentiary  are  felonies,  but  that  the  leg- 
islature had  wisely  "  left  it  to  the  discretion  of  the  jury,  in 
many  offenses,  to  inllict  the  punishment  of  imprisonment  in 
the  penitentiary,  or  line,  or  imprisonment  in  the  county  jail," 
Imt  that  tlioiigh  this  discretion  is  given  to  the  juries,  tiiey  are 
still  felonies.  See  cases  in  7tli  ^lissouri  of  Johamii  v.  Sfafa 
p.  18;},  and  J/i</r<o>i  v.  Staff,  p.  20'}. 

Eeturning  to  tlie  construction  of  our  definition  of  "  felony." 
A  ruling  was  made  in  (icorgia  in  the  civil  case  of  C/mndhi' 
V.  Johnson  ct  al.,  yo  (ia.,  85,  to  the  effect  that  "stabbing" 
might  be  a  felony,  inasmuch  as  it  was  in  the  discretion  of  tlie 
court  to  punish  it  with  imj)risonment  in  tlie  penitent iaiy,  and 
that,  tliorel'tji'e,  a  note  executed  to  prevent  a  prosecution  foi- 
stabbing  was  within  tlie  I'ciisou  ;ind  spirit  of  the  law  against 
compounding  a  felony  -  that  the  higher  law  was  in  that  case 
the  ci'itei'i(ju  for  deteruiininj'-  the  ji'i'ade  of  the  olfense.  The 
liiu;  of  ri)as(jiiing  seems  to  be  that  stabbing,  by  reason  of  its 
liability  to  the  higher  punishment,  is  jjrliud  Jacic  a  felony,  and 
to  b(!  so  considered  in  all  collateral  matters,  unless  the  court 
h;id  acted  and,  by  inflicting  tlie  lower  grade  of  punisliinent, 
ilet(U'iiiiiied  that  the  })articular  offense  was  only  a  misde- 
meanor. 

Tlie  particular  (piestion  before  us  has  been  directly  adjudi- 
cated in  California.     In   the  case  of  The  People  o.  Cornell,  !<> 


-J 


^W' 


STATE  V.  WALLER. 


should  obtain 

I  by  imprison- 
ot  more  than 
was  held  that 
:]Uotcd  meant 
at  defemUints 
,t  and  defraud 
e  crhne  which 
)  alone. 

ilthough  their 
reported  cases, 
led  by  impris- 
horities,  tliere- 
be  noticed,  en 
his  case  in  an- 
ses  which  iikii/ 
t  that  the  leg- 
of  the  jury,  in 
iprisonment  in 
0  county  jail," 
juries,  they  are 
)hiu<in  V.  Sfat'i 

II  of  "  felony." 
Lse  of  Clniiidhr 
it    "stabbing" 
scretion  of  the 
iiilcntiary,  ai\«l 
H'ost'cution  foi- 
lie  law  against 
as   in  that  case 
'  ollVnse.     The 
y  i-eason   of  its 
/(•  a  felony,  and 
iiless  the  conrt 
of  pnnishnient. 
only   a    misde- 

direetly  adjucli- 
;/(•  M.  Co/' nelly  10 


636 


Cal.,  187,  it  was  held,  in  seeming  accord  with  the  Georgia 
view,  Mr.  Cliiof  Justice  Field  dissenting,  that  in  all  these  cases 
which  might  be  punished  either  as  felonies  or  misdemeanors, 
it  was  the  punishment  really  inflldtd  which  determined  the 
grade  of  the  oll'ense.  That,  however,  was  made  with  refei'encc 
to  the  right  of  appeal,  which  was  allowed  in  felonies  ami  not 
in  misdemeanors ;  the  court  holding  that  as  to  this,  it  would 
best  serve  the  intent  of  the  act  to  deny  the  right  of  appeal 
where  only  the  i)unishment  of  a  misdemeanor  had  been  in- 
flicted.    The  appeal  was  dismissed. 

Tlie  {question  arose  again  in  The  People  v.  War,  precisely  as 
it  is  presented  now  here  (20  Cal.,  117).  The  statute  of  that 
state  provided,  as  ours  does  here,  that  "a  felony  is  a  i)ublic 
offense  punishable  by  death  or  by  imprisonment  in  a  state 
prison.  Every  other  public  oll'ense  is  a  misdemeanor."  War  was 
indicted  for  an  assault  with  a  deadly  weapon,  Avith  intent,  etc., 
a  crime  for  which  the  prescribed  })unishment  was  either  impris- 
onment in  the  state  prison,  or  a  line.  A  denmri-er  was  sus- 
tained and  the  people  appealed. 

It  was  contended  by  counsel  for  the  res[)ondent  that  an  ap- 
peal would  not  lie  because  the  olfense  charged  was  not  of  the 
grade  of  felony  and  could  not  be  determined  to  be  so  before 
conviction.  It  was  further  contended  that  the  act  violated  the 
constitutional  provision  as  to  the  right  of  trial  by  jury,  in 
allowing  the  court  to  detei'mine  the  most  important  question 
in  the  case,  that  is,  whether  the  defendant  was  guilty  of  a 
felony  or  only  a  misdemeanor.  It  must  be  confessed  that  the 
argument  is  very  persuasive,  if  indeed  it  be  the  punishment 
actually  inflicled  which  determines  the  gi'ade  of  the  olfense. 

The  court  held,  however,  Mr.  Chief  Justice  Field  this  time 
concurring,  that  the  discretion  given  as  to  the  punishment  did 
not  make  two  offenses,  and  that  it  would  lie  a  singul.u'  conse- 
quence if  the  fixing  of  alternate  punisluuents  belonging  to  dif- 
ferent classes  of  crimes  sln)Uid  prevent  a  criminal  act  from 
being  indictable  as  any  ci'ime.  The  doctrine  was  broadly  an- 
nounced that  any  oll'ense  which  was  liahh  to  be  punislK:d  by 
imprisonment  in  the  state  prison  was  by  reason  of  that  liabil- 
ity made  a  felony,  irropective  of  lighter  ])unishment.and  nuist 
be  so  taken,  ami  considereil,  and  pi'osecuted  with  the  forms  and 
solemnities  of  a  crime  of  that  grade. 


036 


Al^IERK^AN  CRIMINAL  REPORTS. 


l>  < 


«     .1 


m 


We  do  not  feel  at.  liberty  to  run  counter  to  the  weight  of 
authority  upon  this  question,  however  obnoxious  in  other  re- 
spects the  law  may  seem  to  be.  That  is  a  matt(^r  for  tlie  gen- 
eral assembly.  We  must  hold  as  the  better  estiiblished  doctrine 
of  strict  law,  that,  in  this  state,  slander  is  a  felony  by  force  of 
the  statute,  .and  that  it  is  none  the  less  so  because  tlie  judge 
may  mitigate  the  punishment  by  inflicting  such  as  is  ap])ropri- 
ate  to  misdemeanors. 

Whether  or  not  a  fine  enforceable  on  default  b}'  im[)rison- 
ment  at  hard  labor  in  the  penitentiary  be  an  unusual  or  cruel 
punishment,  in  the  sense  of  the  constitution,  is  a  (picstion  whicli 
does  not  affect  the  right  to  impose  the  fine,  but  the  mode  of 
its  collection.  The  ]>ower  to  impose  the  fine  may  be  conceded, 
without  necessarily  conceditig  tlio  power  to  (Mil'orcc^  the  pay- 
ment by  any  mode  unduly  severe  and  unusual  in  other  cases 
of  fines  for  misdemeauoj's.  This  (puvtion  can  be  (U^toriuincd 
when  it  may  arise.  At  ]U'es(Mit  it  is  sunicicut  to  say  slander  is 
made  a  felony  by  the  statute  of  ls(;<,»,  and  not  a  misdemeanor, 
and  it  is  not  left  to  the  court  or  jlry  to  di'tcriniiK^  which  it 
may  be.  This  is  the  positive  result  of  the  decisions  in  Maine 
and  ("alifoi'uia,  and  of  the  statute  in  iMissouri  defining  a  fel- 
ony, which  only  expresses  iliat  which  our  statute,  in  other 
states,  has  been  held  to  ini|)ly.  .Mso  that  the  legislature  has 
the  right  to  provide  in  cas<>s  of  felony  altiM'uative  i)unislinients. 
to  be  left  to  the  discretion  of  the  court,  of  such  nature  as  be- 
lon«;s  to  misdemeanors,  and  that  this  disci-etion,  to  tnitiirati^ 
the  punishment,  does  not  alter  the  nature  of  <he  crinu'.  The 
determination  of  this  question  under  our  statutes  and  consti- 
tution, in  so  far  as  it  may  affect  tli()S(>  only  inmishable  as  for  a 
misdemeanor,  is  not  of  great  importance.  Shuuler,  at  comninn 
law,  was  no  felony,  not  even  an  indictable  crime.  It  is  made 
so  by  statute,  and  a  conviction  upon  it  does  not  disfi-ancKi^e 
one  or  deprive  him  of  any  of  the  rights  of  citizenship. 

We  think  the  court  erred  in  sustaining  the  (l"niurrer,  and 
the  judgment  must  be  reversed  and  the  case  remanded. 


PEOPLE  V.  SPIES. 


037 


I  weight  of 
n  other  rc- 
'or  tho  gen- 
ed  doctrine 
by  t'oi'ce  of 
c;  the  juflge 
is  appropri- 

ty  imprison- 
nal  or  cruel 
!stion  which 
lie  mode  of 
»e  conceded, 
'•c(^  the  pay- 
oil  H^r  cases 
(Ictei'inined 
ly  slander  is 
isdiMneanor, 
\w  which  it 
IS   in   Main(> 
ining  a  fel- 
te.    in   other 
islatiire  has 
inisiiinents, 
tinv  as  be- 
to  mitigate 
nnie.     The 
and  consti- 
lile  as  for  a 
at  conininri 
It  is  made 
lisfranclii^e 
ip. 

I'inrrer.  and 
Ii<led. 


ADDENDUM. 


;m 


People  v.  August  Spies  and  seven  othkks. 

(Criminal  Court  of  Cook  County,  June  Term,  1886.) 

Conspiracy  and  murder. 

Condensed  statement  of  the  facts,  statistics,  etc.,  on  the 
theory  of  the  prosecution: 

The  theory  of  the  prosecution  was  that  there  existed  a  con- 
spiracy to  overthi-ow  the  existing  order  of  society,  to  sack  and 
plunder  the  i>r()perty  of  the  wealthy,  and  to  resist,  by  means 
of  bombs,  dynamite  and  other  explosive  substances,  destructive 
of  life,  the  legally  constituted  authorities.  As  tending  to  es- 
tablish this  theory,  the  prosecution  introduced  in  evidence  the 
speeches,  writings  and  declarations  of  the  defendants,  and  tes- 
timony teiuling  to  sliow  that  there  were  groups  of  anarchists 
scattered  all  over  tlie  city,  in  each  of  which  groui)s  there  was 
what  was  termed  "The  armed  section,"  consisting  of  men  who 
for  a  year  or  more  had  been  drilling,  so  as  to  perfect  themselves 
in  the  use  of  arms,  in  the  making  of  bombs,  etc. ;  and  that,  from 
the  speeches,  writings  and  declarations  of  defendants  and  in- 
terviews had  with  them  seci'etiy.  their  object  waste  take  advan- 
tage of  the  eiglit-hour  labor  agitation  in  carrying  out  the 
conspiracy.  For  some  lime  ])rior  lo  liio  od  of  May,  a  strike  of 
considerable  maenitude  had  been  in  progres.s,  anil  contlicts  be- 
tween what  were  known  as  the  union  im'U  or  reguhirs,  and  those 
employed  in  tln^r  stead,  kiKnvn  as  "scabs,"  had  taken  place  at 
and  around  Me(\)rmick's  Reaper  Works,  in  the  seiithwestcrn 
|K)rtiou  of  the  city.  There  was  also  in  pi-ogress  or  contempla- 
tion a  general  striki>  among  the  hnnber-shovers  in  tliat  part  of 
the  city,  and  a  committee  had  been  appointed  by  them  to  con- 
fer with  their  bosses  in  order  to  bring  about  an  adjustment 
of  ^heir  grievances.  On  May  ;M,  six  or  eigiit  thousand  men 
engaged  in  that  industry  n»ei  in  the  n(>ighborhoo(l  of  McCor- 
mick's  factory  to  UvH^i'  the  n^port  of  tlie  committee  thus  ap- 


-;n^iy-. 


638 


AMERICAN  CRIMINAL  REPORTS. 


,•( 


pointed;  but  these  men  had  nothing  to  do,  and  were  in  no 
way  connected  with  the  McCormick  strike.  Au<.>ust  Spies 
was  present  at  this  meeting,  by  invitation,  as  he  claimed;  but 
the  theory'  of  the  state  was  that  Spies  attended  it  for  tlie  ex- 
press purpose  of  inciting  the  men  to  riot  and  disturbance,  and 
to  establish  this  theory  the  prosecution  introduced  testimony' 
tending  to  show  that  the  meeting  was  opposed  to  the  nuiking 
of  s[)eeches  by  Spies  and  another  socialist  named  Fehlen,  on  the 
ground  that  they  were  socialists.  However  this  nuiy  be,  the  testi- 
mony tended  to  show  that  after  Spies  and  Fehlen  made  speeches, 
and  after  they  had  been  s])eaking  for  some  time,  the  McCor- 
mick bell  rang,  indicating  that  the  work  was  through  for  that 
afternoon,  and  as  soon  as  the  workmen  (known  as  "  scabs ") 
came  out  of  the  factory,  the  crowd  whom  they  had  been  ad- 
dressing, rnshed  down  and  began  stoning  the  fiictory  and 
assaulting  the  " scabs."  After  this  attack  began,  the  i)olico 
appeared  upon  the  scene,  and  a  struggle  ensued  between  tliem 
and  the  crowd,  in  which  stones  were  thrown  and  several  pistol 
shots  fired.  The  testimony  also  tended  to  show  that  as  soon 
as  the  riot  began,  and  before  he  could  know  what  the  result 
v;as.  Spies  rushed  to  the  city  and  wrote,  had  printed  and  caused 
to  be  circulated  in  great  haste,  large  numbers  of  an  inflamma- 
tory circular,  which  reads  as  follows: 

REVENGE!  REVENGE! 

WORKINOMKN  TO  ARMSl 

Men  of  labor,  this  afternoon  the  bloo(l-lioun<ls  of  your  oppressors  mur- 
dered six  f>f  your  l)rother3  at  McCorniick'H.  Wliy  did  tliey  murder  them? 
Because  they  dared  to  l)e  dissatisfied  witli  the  lot  wlii'h  your  oppressors 
have  aasi^ned  to  them.  They  deinand«'<l  l)ri'ad,  and  they  ^nve  them  lead 
for  an  answer,  mindful  of  the  fact  that  thus  pcopU?  are  most  etTcctually 
silenced.  You  have  for  many,  many  years  eiuhued  every  liimiiliatiou  witli- 
out  jirotest,  havf  drudfre<l  from  early  in  tlie  niorninj;  till  late  at  ni^ht,  have 
suffered  all  sorts  of  privations,  have  even  sacrificed  jour  cliildren.  You 
have  <k)ne  everything  to  fill  the  coffers  of  your  masters  —  everything  for 
them!  and  now,  when  you  approacli  them  and  implore  them  to  niaito  your 
burden  a  little  lighter,  as  a  reward  for  your  sacrifices  they  sent  their  l)lood- 
houn<ls,  the  police,  at  you,  in  order  to  cine  you  with  bullets  of  your  dis- 
satisfaetion.  Slaves,  we  ask  and  conjure  you  l)y  all  that  is  siicred  and  <ie;ii- 
to  you.  avenge  tlu<  afrMcions  nuirder  wlilcli  lias  been  conunitted  upon  your 
brothers  to-day,  an<l  wliicli  will  iikt'ly  be  conmiitteil  on  you  to-morrow. 
Laboring  men,  Hercules,  you  have  arrived  at  tiie  crossway.  Which  w.iy 
will  you  decide?    For  slavery  and  hunger  or  freedom  and  breail?    If  you 


TEOPLE  c.  SUES. 


»;:!'.) 


wero  in  no 
Vugust  Spies 
slaimed;  but 
t  for  the  ex- 
urbjince,  and 
('(l  testimony 
3  the  making 
I'eiilen,  on  the 
y  be,  the  testi- 
liule  speeclies, 
.>,  the  McCor- 
i)\igh  for  that 
I  as  "  scabs  ") 

luid  been  ad- 

fiiotory  and 
in,  the  police 
lietwcou  tlieni 

several  pistol 
'  that  as  soon 
liat  the  result 
:ed  and  caused 

an  inflaunna- 


•  oppressors  mur- 

■y  iimriler  them? 

yf)ur  opi>ress(irs 

fxave  tlieni  lead 
inosi  eirectually 
liiiiiiiliationwitli- 
ite  at  niuht,  liave 
r  olnldren.     You 

-everylhitiK  for 
em  to  inako  your 

sent  tlieir  hlood- 

lets  of  your  dis- 
s  haered  and  deur 
mitted  upon  your 

you  to-morrow. 

ay.  Which  way 
id  bread?    If  you 


deoide  for  the  latter,  then  do  not  delay  a  moment;  then,  peojjle,  to  arm»! 
Annihilation  to  tlio  beasts  in  human  forms  who  call  themselves  your  rulers! 
Uncompromising  annihilation  to  them!  This  must  be  your  motto.  Tiiink 
of  the  heroes  whose  blood  has  fertilized  the  road  to  progress,  liberty  and 
humanity,  and  strive  to  become  worthy  of  thom. 

Yocu  Brothers. 

The  testimony  also  tended  to  show  that  infliimniatoiy  articles 
appeared  in  the  Apheiter  Ze'duny,  edited  or  controlled  by  Spies. 
and  in  the  J./a/'w,  edited  or  controlled  by  Parsons;  that  in 
response  to  a  notice  inserted  in  the  Arheitet'  ZtUumj,  gjveu 
through  the  use  of  a  pass-word  inserted  by  the  socialists,  a 
meeting  of  the  representatives  of  the  armed  section  of  all  the 
socialistic  organizations  in  the  city  was  held  in  Zepfs  Hall 
on   the   night  preceding   the  riot,  at  which  the  defendants 
attendcMl.  and  a  plan  was  arranged  by  which  the  armed  sec- 
tions should  be  prepared  on  the  next  night  to  arrange  them- 
selves in  the  neighborhood  of  tiie  police  stations  and  other 
places,  armed  with  l)ombs.  and  that  when  they  received  notice 
they  siiould  attack  and  destroy  the  police  stations,  slK)ot  down 
the  officers  and  join  in  the  general  work  of  revolution  and 
incendiarism;  that  at  the  meeting  a  word  was  agreed  upon  to 
be  given  as  a  signal,  and  the  word  "Kuhe"  was  proposed, 
which   means  "peace,"  and  that  this  word  ai)peared  in  tlie 
Arht'lter  Zcltiituj  on  the  day  of  the  riot.    The  testimony  of 
chemists  tended  to  show  that,  from  analysis  of  jiarticies  of  the 
ex})loded  bomb  extracted  from  those  killed  aiul  wounded  on 
the  night  in  question,  this  bomb  was  made  out  of  and  com- 
posed  of    materials  similar   to  those  found  in  Lingg's  pos- 
session.    The  testimony  also  tended  to  show  that  Spies  had 
received  a  letter  in  relation  to  the  Hocking  A'alley  troubles 
from  John  Most,  the  anarchist,  in  which  he  (Most)  said  that  he 
was  in  a  position  "  to  furnish  medicine,  and  the  genuine  article 
at  that,"  and  that  from  articles  written  by  Spies  in  the  Arhelter 
Zeitiuuj  and  Alarm,  in  which  minute  instructions  were  given 
regarding  the  manufacture  of  dynamite  and  tlie  instructions 
contained  in  Most'sbook,  a  common  object  had  existed  between 
them  reaching  back  at  Iciist  as  far  as  the  Hocking  \'alley 
troubles.     The  testinumy  also  tended  to  show  that  l.ingg  came 
to  this  country  about  nine  months  ago,  at  which  time  he  joined 
this  organization,  went  to  board  with  Seliger,  and  shortly 
thereafter  began  to  make  bombs;  that  dynamite  Avas  found  in 


f.4»t 


AMERICAN   CUIMIXAL   RKl'ORTS. 


U-^f 


n\ 


■«ja 


■U 


his  room,  and  that  two  months  before  the  hay-market  meetinji^ 
$lu  was  raised  at  a  dance  and  <:fiven  to  iiing'<,'  to  enable  him 
to  make  experiments  with  dynamite.  Tlie  testimony  also 
tended  to  s1k)w  that  the  object  of  the  socialists  was  to  .attract 
a  large  crowd  of  some  twenty  or  twenty-live  thousand  labor- 
ing men  to  the  meeting  so  as  to  take  advantage  of  the  large 
number  to  carry  out  their  designs,  but  that  the  laboring  men 
di<l  not  respond,  and  therefore  the  raeeeting  was  limited  to  the 
socialistic  orders;  that  when  the  attention  of  the  inspector  of 
j)olice,  IJonlield,  was  called  to  the  article  in  the  "llevenge" 
circular,  he  went  to  the  mayor  and  laid  the  matter  before  him. 
According  to  his  (the  mayor's)  instructions  he  ordered  the  men 
to  assemble  at  the  Uesplaines  street  station,  to  be  in  readiness 
in  case  an  outbreak  should  occur.  About  10  o'clock  men  who 
had  been  detaileil  to  watch  the  meeting  re|)orted  that  it  was 
time  to  break  it  up.  On  hearing  this  the  men  were  ordered 
out.  There  was  about  one  hundred  and  sixty  of  them  m 
all.  They  marched  up  the  street  intending  to  guard  the 
thoroughfare,  and  as  the  character  of  the  sjjeeches  grew  more 
violent  ami  inllammatory  in  their  tone,  the  ca])tain  of  police 
commanded  the  crowd,  in  the  iiauie  of  the  peoph;  of  the  state 
of  Illinois,  to  disj)erse.  The  testimony  also  tended  to  show 
that  at  that  time  defendant  Fielden,  who  was  standing  in  front 
of  the  truck  from  which  the  speeches  had  been  made,  turned 
to  the  police  and  said,  "  We  are  peaceable,"  and  that  instantly 
the  crowd  parted  in  a  peculiar  manner,  and  the  next  moment  a 
hissing  sound  was  heard  and  then  a  terrific  explosion,  followed 
by  a  fusillade  of  pislol  sh«>ts  livom  the  sidewalks.  The  sliots 
were  returned  by  the  police,  and  after  the  iiring  was  over  the 
ground  was  found  to  be  covered  with  wounded  policemen, 
several  of  whom  were  dying,  while  a  number  of  citizens  wei'e 
wounded  and  one  killed  outright.  OfHcer  Degan,  for  whoso 
murder  the  defendants  stand  convicted,  was  killed,  while  sixty- 
six  others  were  wounded  by  pieces  of  the  bomb  and  pistol 
shots,  six  of  them  fatally. 

jVlay  5th  the  police  arrested  August  Spies,  Christine  Spies. 
Michael  Schwab  and  Samuel  Fielden;  also  Oscar  Keebe.  Mrs. 
Parsons,  Mrs.  Schwab,  and  all  the  printers  iu  the  Arheitc/'  Xd- 
tuny  office.  With  the  exception  of  the  first  foui'  named  pei'sous 
they  were  released  after  having  been  examineil  by  the  police. 


rket  meetinjj; 

0  enable  him 
stimony   also 
vas  to  attract 
ousand  labor- 
\  of  the  larf^e 
labornij^'  men 
limited  to  the 
le  inspector  of 
le  "  lievenge  " 
er  before  him. 
(lered  the  men 
le  in  readiness 
lock  men  who 
ed  that  it  was 

were  ordered 
,y  of  them  m 

to  guard  the 
lies  grew  more 
)tain  of  police 
)le  of  the  state 
inded  to  show 
inding  in  front 

1  made,  turned 
that  instantly 

next  moment  a 
osion,  followed 
cs.  The  si  lots 
4"  was  over  llie 
led  policemen, 
)f  citizens  were 
^an,  for  whose 
ed,  while  sixty- 
)mb  and  pistol 

'Christine  Spies, 
3ar  Neebe,  Mrs. 
le  Ai'heitir  Z<  >- 
named  persons 
I  by  the  police. 


PEOPLE  r.  SPIES. 


641 


May  7th  George  Engel,  Gustave  Stanger  and  William  Seli- 
ger,  prominent  socialists,  wei-e  ari-estcd  by  the  police  on  sus- 
picion. SeveVal  bombs  woiv  found  in  the  ArLIf,,'  Z,;f„i,(j 
oflice,  and  these  were  discovered  t(j  be  lilled  with  dynuinitc.  and 
many  saloons  and  other  places  suspect<>d  of  hcjiig  ivsuits  of 
socialists  in  diflferent  jiarts  of  the  city  were  raided  h\  the 
police,  and  arms  and  socialistic  literature  seized.  May  lotli  ;•> 
number  of  bombs  were  found  under  sidewalks  in  the  north- 
western portion  of  the  city.  May  11th  Louis  IJuiig,  the 
bomb-nuiker,  was  arrested.  ]\Iay  18tli  the  grand  jury  im- 
paneled before  the  Hon.  John  G.  Jiogers,  after  havinir  been  in- 
structed by  that  learned  judge  as  to  their  duty  in  the  [neitiises, 
began  the  examination  of  witnesses,  and  on  the  25th  returned 
an  indictment  against  Spies,  Schwab,  Schnaubelt,  Fisch(M', 
Fielden,  Lingg.  Engel.  Neebe  and  Parsons  for  the  murder  of 
Officer  Degan.  On  June  <ith  seven  of  the  persons  W(;re  ar- 
raigned and  pleatled  not  guilty,  and  on  June  20th  Spies, 
Schwab,  Neebe  and  Fielden  made  api)lications  for  se])ariite 
trials,  but  the  motion  was  overruled.  On  June  21st  the  trial 
commenced  before  the  lion.  Joseph  E.  Gary,  in  the  critninjil 
court,  and  on  that  day  A.  II.  Parsons,  whose  whereabouts  from 
the  time  of  the  murder  had  been  unknown,  voluntarily  surren- 
dered himself,  walked  into  court  with  his  counsel  and  took  a  seat 
in  the  prisoners'  dock  by  the  side  of  his  indicted  fellovv'-anarch- 
ists.  The  time  between  June  21st  and  July  IGth  was  con- 
sumed in  impaneling  the  jury,  and  from  the  latter  datv'  u.p  to 
and  including  July  18th  the  time  of  the  court  was  consumed 
in  the  introduction  of  testimony  and  arguments  of  C(^nnsel. 

The  total  number  of  men  summoned  as  jurors  on  the  three 
regular  venires,  thirteen  special  venires  served  by  the  sheriff, 
and  ten  sjjccial  venires  served  by  si)ecial-ltailiir  Hyce,  was  one 
thousand  two  hundreil  and  eighty-one.  Of  these  nine  hundred 
and  eighty-two  were  examined  by  counsel  as  to  their  compe- 
tency to  try  the  case,  and  the  other  two  hundred  and  ninety-nine 
were  excused  by  the  judge  for  various  reasons.  Deducting 
from  the  nine  hundred  ami  eighty -two  the  one  hundred  and 
sixty  peremptory  challenges  of  the  defense  and  fifty-two  of  tlus 
prosecution,  and  allowing  for  the  jury  chosen,  it  is  seen  that 
seven  hundred  and  lifty-eight  jurors  were  excused  for  cause. 
Mr.  Julius  S.  (Jrinnell,  state's  attorney,  made  a  two  hours'  open- 
VoL.  V  — 41 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


11.25 


■tt  lii   12.2 
IS   U£    12.0 

WUU 

^U4 


Photographic 

Sciences 

Corporation 


23  WIST  MAIN  STRUT 

WiiSTiR,N.Y.  USM 

(71«)R71-4503 


\ 


<v 


i. 

^ 


642 


AIMERICAN  CRIMINAL  REPORTS. 


ing  speech,  and  the  prosecution  called  one  hundred  and  eleven 
witnesses,  taking  from  July  16  to  July  31.  A  day  was 
consumed  by  the  defense  in  various  motions  and  Mr.  Moses 
Salomon's  opening  speech.  Seventy-nine  witnesses  were  called 
by  the  defense  from  July  31  to  August  10.  The  prosecution 
then  spent  an  hour  or  two  in  calling  thirty-two  witnesses  in 
rebuttal.  The  closing  speeches  then  began.  Mr.  Frank  W. 
Walker  occupied  a  little  over  a  day;  Mr.  Sigmund  Zeisler 
about  the  same;  Mr.  George  C.  Ingham,  who  assisted  the 
state's  attorney  for  the  prosecution,  four  hours  and  a  half; 
Mr.  William  A.  Foster,  nearly  two  entire  days;  Capt.  William 
P.  Black  about  a  day  and  a  half,  and  Mr.  Grinnell  barely  six 
hours. 

It  is  hardly  necessary  to  apologize  to  the  profession  for  pub- 
lishing this  case  in  the  series  of  Leading  Criminal  Cases,  as  it  is 
one  of  exceptional  importance.  I  do  not  wish  it  to  be  under- 
stood that  the  foregoing  is  a  full  statement  of  the  evidence. 
It  is  simply  what  it  purports  to  be  —  a  condensed  statement 
of  the  facts,  statistics,  etc.,  on  the  tiieory  of  the  prosecution. 

Judge  Gary  instructed  the  jury  in  behalf  of  the  people  as 
follows : 

The  court  instructs  the  jury,  in  the  lanjj;uap;e  of  the  st.itute,  that  murder 
18  the  unlawful  killing  of  a  lunnan  being,  in  the  jyeate  of  the  pt Jiih', 
with  malice  aforethought,  either  expressed  or  iinplieil.  The  unlawful  killing 
may  he  perpetrated  hy  poisoning,  striking,  starving,  drowning,  stabbing, 
shooting,  or  by  any  other  of  the  various  forms  or  means  by  which  huniau 
nature  maj'  ite  overcome  and  ileath  thereby  occasioned.  Kxjiress  malice  is 
that  deliberate  intention  unlawfully  to  take  away  the  life  of  a  fellow- 
creature,  which  is  manifestetl  by  ext<'rnal  ciri-umstanccs  capai)le  of  proof. 
Malice  shall  l)e  implied  when  no  considerable  i)rovocation  appears,  or  when 
all  the  circumstances  of  the  killing  show  an  abandoned  and  malignant 
heart. 

The  ct>urt  instructs  the  jury  that  wlioever  is  guilty  of  uuirder  shall  sulTir 
the  punishment  of  death,  or  imprisonment  in  the  pt-nitentiary  for  his  niil- 
ural  life,  or  for  a  term  not  less  than  fourteen  years.  If  the  accused,  or  any 
of  them,  are  found  guilty  by  a  jury,  the  jury  shall  lix  the  punishment  by 
their  verdict. 

The  t;ourt  instructs  the  jury,  iw  a  matter  of  law,  that  an  accessory  is  he 
who  stands  by  and  aids,  al)ets  or  assists,  or  who,  not  being  present  aiding, 
alM3tting  or  assisting,  hath  lulvised,  encouraged,  aided  or  abetted  the  perjie- 
tration  of  the  crime.  He  who  thus  aids,  abets,  assists,  advises  or  encour- 
ages shall  be  ccmsidered  as  principal  and  punished  accordingly.  Every 
such  accessory,  when  a  crime  is  conunitted  within  or  without  this  stat<',  liy 
hib  aid  or  procurement  in  tliis  state,  may  be  indicted  and  convicted  at  the 


PEOPLE  V.  SPIES. 


643 


I  and  eleven 
A  day  was 
d  Mr.  Moses 
s  were  called 
3  prosecntion 

witnesses  in 
r.  Frank  W. 
mund  Zeisler 

assisted  the 
I  and  a  half; 
:^aj)t.  William 
lell  barely  six 

?ssion  for  pub- 
l  Cases,  as  it  is 
it  to  be  undef- 
[  the  evidence, 
scd  statement 
prosecution, 
the  people  as 

tute,  that  murder 
e  of  the  |>t  nilo, 
unlawful  killing 
AvniiiK.  stahhiiiK. 
l.y  which  hvuuau 
r.xjiri'ss  malit'e  is 
ile  of  a   fellow- 
il)al>lt'of  proof, 
ipjicars,  or  whoii 
I  aiitl  nuili};>»'i"t 

luriler  shall  hiilT.r 
Hilary  for  his  lua- 
lu-  at  Tusi'tl,  or  any 
lie  iiuuishnu'iit  by 

an  accessory  is  he 
1^  present  aiding, 
al)ette(l  the  perpe- 
lilvises  or  oncour- 
•cordinnly.  Every 
hout  this  Stat*',  hy 
I  convicted  al  the 


same  time  as  the  principal,  or  before  or  after  his  conviction,  and  whether 
the  principal  is  convicted  or  amenable  to  justice  or  not,  and  punished  aa 
principal. 

The  court  further  instructs  ihe  jury  that,  while  it  ia  provided  by  the  con- 
stitution of  the  state  of  Illinois  that  "  every  iwrson  may  freely  speak,  write 
and  publish  on  all  subjects,"  he  is  by  the  constitution  held  responsible  under 
the  laws  for  tne  abuse  of  the  liberty  so  given.  Freedom  of  speeeh  is  lim- 
ited by  the  laws  of  the  land  to  the  extent,  among  other  limitations,  that  no 
man  is  allowed  to  a<lvise  the  committing  of  any  crime  against  the  person 
or  property  of  another.  And  the  statute  provides:  "An  accessory  is  he 
who  stands  by  and  aids,  abets  or  assists,  or  who,  not  being  present  aiding, 
abetting  or  jissisting,  hath  advised,  encouraged,  aided  or  abetted  the  jjerpe- 
tration  of  the  crime.  He  who  thus  aids,  abets,  assists,  advises  or  encour- 
ages shall  l>e  considered  as  principal  and  punished  accordingly." 

Every  such  accessory,  when  a  crime  is  committed  within  or  without  this 
state,  by  his  aid  or  procurement  in  this  state,  may  be  indicted  and  convicted 
at  the  same  time  as  the  principal,  or  before  or  after  his  conviction,  and 
whether  the  principal  is  convicted  or  amenable  to  justice  or  not,  and  pun- 
ished a«  J  rincii)al. 

The  court  further  instructs  the  jury,  as  a  matter  of  law,  that  if  they  be- 
lieve from  the  evidence  in  this  case,  beyond  a  reasonable  doubt,  that  the 
defendants,  or  any  of  them,  conspired  and  agreed,  together  or  with  others, 
to  overthrow  the  law  by  force,  or  to  unlawfully  resist  the  o^icers  of  the 
law,  and  if  they  further  believe  from  the  evidence,  beyond  a  resisonable 
doubt,  that,  in  jjursuanco  of  such  conspiracy,  and  in  furtherance  of  the 
common  object,  a  lx>mb  was  thrown  by  a  meml)er  of  such  conspiracy  at  the 
time,  and  that  Matthias  J.  Degan  was  killed,  then  such  of  the  defendants 
that  tlu'  jury  lH?iieve  from  the  evidence,  beyind  a  reasonable  doubt,  to  have 
been  parties  to  such  conspiracy  are  guilty  of  murder,  whether  luesent  at 
the  killing  or  not.  and  whether  the  identity  of  the  person  throwing  the 
bomb  be  established  or  not. 

If  the  jiu-y  iM'lieve,  from  the  evidence,  beyon<l  a  reasonal)le  doubt,  that 
there  wius  in  existence  in  this  county  and  state  a  conspiracy  to  overthrow 
the  existing  order  of  society,  and  to  bring  alwut  asocial  revolution  by  force, 
or  to  destroy  the  legal  authorities  of  this  city,  county,  or  state,  by  force,  and 
that  the  defendants  or  any  of  them  were  {larties  to  such  conspiracy,  and 
that  Degan  was  killed  in  the  manner  described  in  the  indictment  — that  ho 
was  killed  by  a  bomb,  and  that  tlu  bomb  was  thrown  by  a  party  to  the  con- 
spiracy ami  in  furtherance  of  the  objects  of  theconspi.  icy,— then  any  of  the 
defendants  who  were  memln'rs  of  such  conspiracy  at  that  time  are  in  this 
case  guilty  of  murder,  and  that,  although  the  jury  may  further  believe  from 
the  evidence  that  the  time  and  place  for  the  bringing  about  of  such  revolu- 
tion or  the  destruclVm  of  such  autlujrities  had  not  been  deHnitely  agreed 
upon  by  the  conspirators,  but  was  left  by  them  to  the  exigencies  of  time,  or 
to  the  judgment  of  any  of  the  co-conspirators. 

If  these  defendants,  or  any  two  or  more  of  them,  conspired  together  with 
or  not  with  any  other  jierson  or  persons  to  excite  the  people  er  classes  of  the 
people  of  this  city  to  sedition,  tunuilt  and  riot,  iind  to  use  deadly  weapons 
against  and  take  the  lives  of  other  persons  as  a  means  to  carry  their  deaigna 


lif-'l 


'T'^'' 


6il 


AMERICAN  CRIMINAL  REPORTS. 


'<i 


and  purposes  into  effect,  and  in  pursuance  of  such  conspiracy,  and  in  fur- 
therance of  its  objects,  any  of  the  persons  so  conspiring  publicly  by  print  or 
speech  advised  or  encouraged  the  commission  of  murder  without  designating 
time,  place  or  occasion  at  wiiich  it  sIkjuUI  be  done,  and  in  pursuaiuc  of  and 
induced  by  such  advice  or  encourageinont  murder  was  coinmittfMl.  then  all 
of  such  conspirators  are  guilty  of  such  inunlcr,  whether  the  person  who  i)er- 
j»etrated  such  murder  can  be  identified  or  not.  If  such  murder  was  com- 
mitted in  pursuance  of  such  advice  or  encouragement,  and  was  induced 
thereby,  it  does  not  matter  what  change,  if  any,  in  the  order  or  condition  of 
society,  or  what,  if  any,  advantage  to  themselves  or  t)thers  the  conspirators 
proposed  as  the  result  of  their  conspiracy.  Nor  does  it  matter  whether  such 
advice  or  encouragement  had  been  fre<pient  and  long-continued  or  not,  ex- 
cept in  determining  whether  the  perpetrator  of  the  nuirder  was  or  was  not 
acting  in  pursuance  of  such  iulvice  or  encouragement,  and  was  or  was  not 
induced  thereby  to  commit  the  murder.  If  there  was  such  a  conspiracy  as 
in  this  instruction  is  recited,  and  such  advice  or  encouragement  was  given, 
antl  murder  committed  in  pursuance  of  ami  induced  thereby,  then  all  of 
Buch  conspirators  are  guilty  of  murder.  Nor  tloes  it  matter,  if  there  was 
such  a  conspii'acy,  how  impractical)le  or  impossible  of  success  its  ends  and 
aims  were,  nor  how  foolisli  or  ill-arranged  were  the  plans  for  its  execution, 
except  as  bearing  on  the  question  whether  there  was  or  was  not  such  con- 
spiracy. 

The  court  instructs  the  jury  tliat  if  they  believe  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  defendants  on  trial  in  this  case  advised 
or  encouraged  the  killing  of  Matthias  J.  Degan,  as  charged  in  the  indict- 
ment, or  advised  or  enc«)uraged  such  unlawful  acts  as  had  a  tendency  to 
destroy  life,  and  as  a  result  of  such  advice  or  encouragement  the  said 
Matthias  J.  Degan  was  killed,  as  charged  in  the  indictment,  then  they  are 
considered  as  principals  and  should  be  punished  accortlingly. 

The  court  instructs  the  jury  that  a  conspiracy  may  be  established  by  cir- 
cumstantial evidence  the  same  as  any  other  fact,  and  that  such  evidence  is 
legal  and  competent  for  that  purpose.  So,  as  to  whether  an  act  committed 
was  done  by  a  memlxir  of  a  conspiracy  may  be  established  by  circum- 
stantial evidence,  whether  the  identity  of  the  individual  who  committed 
the  act  bo  established  or  not,  and  also  whether  an  act  done  was  in  pur- 
suance of  the  common  design  rajiy  be  ascertained  by  the  same  class  of 
evidence;  and  if  the  jury  believe  from  the  oviilence  in  this  case,  bej'ond 
a  reasonable  doubt,  that  the  defend.ints,  or  any  of  them,  cons])ired  and 
agreed  together,  or  with  others,  to  overthrow  the  law  by  force,  or  destroy 
the  legal  authorities  of  this  city,  couuty  or  state  by  force,  and  that  in  fur- 
therance of  the  common  design,  and  by  a  member  of  such  conspiracy, 
Matthias  J.  Degan  was  killed,  then  these  defendants  whom  the  jury  lielieve 
from  the  evidence,  beyond  a  reasonabl(>  doubt,  were  parties  to  such  con- 
spiracy are  guilty  of  the  murder  of  Mathiiis  J.  Degan,  whether  the  identity 
of  the  individual  doing  the  killing  be  estal)lished  or  not,  or  whether  such 
defendants  were  present  at  the  time  of  the  killing  or  not. 

The  jury  are  instructed,  as  a  matter  of  law,  that  all  who  take  part  in  a 
conspiracy  after  it  is  formed  and  while  it  is  in  execution,  and  all  who,  w  li 
knowledge  of  the  facts,  concur  in  the  plans  originally  formed,  and  aid  in  ex- 


w 


PEOPLE  V.  SPIES. 


645 


icy,  and  in  fur- 
ifly  by  print  or 
out  designating 
lusnaiift'  i>f  and 
initt(Ml.  then  all 
IHTsou  who  i)er- 
uider  was  coin- 
ud  was  induced 
r  or  condition  of 
the  (•onsi)irators 
ter  whether  such 
iuumI  or  not,  ox- 
was  or  was  not 
I  was  or  was  not 
I  !i  conspiracy  as 
ment  was  given, 
»reby,  then  all  of 
tter,  if  there  was 
x-ess  its  ends  and 
for  its  execution, 
as  not  such  con- 

the  evidence,  be- 
this  case  a<lvised 
5ed  in  the  indict- 
lad  a  tendency  to 
igcmont  the  said 
snt,  then  they  are 

ly. 

istablished  by  cir- 
t  such  evidence  is 
an  act  coninutted 
jshed  by  circum- 
il  who  committed 
done  was  in  pur- 
the  same  class  of 
this  case,  beyond 
im,  consijired  and 
r  force,  or  destroy 
',  and  that  in  fur- 
such  conspiracy, 
n  the  jury  believe 
rties  to  such  con- 
lether  the  identity 
;,  or  whether  such 

vho  take  part  in  a 
and  all  who,  w  h 
ned,  and  aid  in  ex- 


ecuting them,  a IV  f<ll<nv-conspirators.  Their  coiicurronco,  without  proof  of 
an  agreement  to  concur,  is  conclusive  against  them.  Th(!.y  commit  the  of- 
fense when  they  becume  parties  to  the  transaction,  or  fuii,iier  the  original 
plan  with  knowlcMlge  of  tiie  conspiracy. 

The  court  instructs  tlie  Jury,  a.s  a  matter  of  law,  tiiat  circumstantial  evi- 
dence is  just  as  legal  a!»d  Just  as  etfectual  as  any  other  evidence,  j)rovided 
the  cinnimstanccs  are  of  such  a  character  and  force  as  to  satisfy  the  minds 
of  the  jury  of  tlie  defendants'  guilt  beyond  a  reasonable  doul)t. 

The  court  instructs  the  jury  that  whoever  is  guilty  of  nmrder  shall  suffer 
the  punishment  of  deatli,  or  imprisonment  in  the  penitentiary  for  his  nat- 
ural life,  or  for  a  term  of  not  less  than  fourteen  years.  If  the  accused,  or 
any  of  them,  are  found  guilty  by  a  jury,  the  jury  shall  fix  the  punishment 
by  their  verdict. 

The  court  instructs  the  jury  that  what  is  meant  by  circumstantial  evi- 
dence in  criminal  cases  is  the  proof  of  such  facts  and  circumstances  con- 
nected with  or  surrounding  the  ccmmission  of  the  crime  charged  as  tends 
to  show  the  guilt  or  innoicnce  of  the  party  charged,  and  if  these  facts  and 
circumstances  are  sufKcient  to  satisfy  the  jury  of  the  guilt  of  the  defend- 
ants beyond  a  reiusonal)le  doubt,  then  such  evidence  is  sufficicuit  to  authorize 
the  jurj'  in  finding  the  defendants  guilty 

The  law  exacts  the  conviction  wherever  there  is  legal  evidence  to  show 
tlie  defendants'  guilt  beyond  a  reasonable  dimht,  and  circumstantial  evi- 
dence is  legal  evidence. 

The  c(mrt  instructs  the  jury,  as  a  matter  of  law,  that  when  the  defend- 
ants, August  Sjiies,  ]\Iichel  Schwab.  Albert  R.  Parsons  and  Samuel  Fielden, 
testifie<l  as  witnesses  in  this  case,  each  became  the  same  as  any  other  wit- 
ness, and  the  crediiiility  of  each  is  to  be  tested  by  and  subjected  to  the  same 
tests  SIS  are  legally  applied  to  any  other  witness;  and  in  determining  the 
degree  of  credibility  that  shall  Im?  accorded  to  the  testimtmy  of  any  one  of 
said  above-named  defendants,  the  jury  have  a  right  to  take  into  considera- 
tion the  fact  that  he  is  interested  in  the  result  of  this  prosi^cution,  as  well  as 
his  demeanor  and  conduct  upon  the  witness  stand  and  during  the  trial;  and 
the  jury  are  also  to  take  into  consideration  the  fact,  if  such  is  the  fact,  thai 
he  hiis  been  contradicted  by  other  witnesses.  And  the  court  further  in- 
structs the  Jury  that  if,  after  considering  all  the  evidence  in  this  case,  they 
find  that  any  one  of  said  defendants,  August  Spies,  Michel  Schwab,  Allxjrt 
R.  Parsons  and  Samuel  Fielden,  has  wilfully  and  corruptly  tesfiflcid  falsely 
to  any  fact  material  to  the  issue  in  this  case,  they  have  the  right  to  entirely 
disregard  his  testimony  excejjting  in  so  far  as  his  testimony  is  corroborated 
by  other  credible  evidence. 

The  rule  of  law  which  clothes  every  person  accused  of  crime  with  the  pre- 
sumption of  innocence,  and  imposes  upon  the  state  the  burden  of  establish- 
ing his  guilt  beyond  a  reasonable  doubt,  is  not  intended  to  aid  any  one  who 
is  in  fact  guilty  of  crime  to  escape,  but  is  a  humane  provision  of  law,  in- 
tended, so  far  as  human  agencies  can.  to  guard  against  the  danger  of  any 
iimocent  person  being  unjustly  iiunished. 

The  c<mrt  instructs  the  Jury,  as  a  miitliT  of  law,  that,  in  considering  the 
case,  the  jury  are  not  t<>  go  lieyond  the  evidence  to  hunt  up  doubts,  nor 
must  they  entertain  siicii  doultts  as  are  merely  cliimericiil  or  conjectural. 


6^6 


AMERICAN  CRIMINAL  REPORTS. 


m 


,  m 


!""li 


A  doubt,  to  justify  an  acquittal,  must  be  reasonable,  and  it  must  arise  from 
a  candid  and  impartial  investigation  of  all  the  evidence  in  the  case ;  and  un- 
less it  is  such  that  were  the  same  kind  of  doubt  interposed  in  the  graver 
transactions  of  life,  it  would  cause  a  reasonable  and  prudent  man  to  hesi- 
tate and  pause,  it  is  insufHcient  to  authorize  a  verdict  of  not  guilty.  If, 
after  considering  all  the  evidence,  you  can  say  you  luave  an  abiding  convic- 
tion of  the  truth  of  the  charge,  you  are  satisfied  beyond  a  reasonable  doubt. 

The  court  further  instructs  the  jury,  as  a  matter  of  law,  that  the  doubt 
which  the  juror  is  allowed  to  retain  on  his  own  mind,  and  undiT  the  influ- 
ence of  which  he  ohould  frame  his  verdict  of  not  guilty,  must  always  be  a 
reasonable  one.  A  doubt  produced  by  undue  sensibility  in  tlie  mind  of  any 
juror  in  view  of  the  consccjuence  of  his  verdict  is  not  a  reasonable  doubt, 
and  a  juror  is  not  allowed  to  create  sources  or  materials  of  doubt  by  resort- 
ing to  trivial  and  fanciful  suppositions  and  remote  conjectures  as  to  possible 
states  of  fact  differing  from  that  established  by  the  evidence.  You  are  not 
at  liberty  to  disbelieve  as  jurors  if,  from  the  evidence,  you  believe  as  men ; 
your  oath  imposes  on  you  no  obligation  to  doubt  where  no  doubt  would 
exist  if  no  oath  had  been  administered. 

The  court  instructs  the  jury  that  they  are  the  juilges  of  the  law  as  well  as 
the  facts  in  this  case,  and  if  they  can  say  upon  tlieir  oaths  that  they  know 
the  law  better  than  the  court  does  they  have  the  right  to  do  so.  But  before 
assummg  so  solemn  a  resijoiisibility  tiiey  should  be  sure  that  tliey  ai'e  not 
acting  from  caprice  or  prejudice;  tliat  they  are  not  controlled  by  their  will 
or  their  wishes,  but  from  a  deep  and  c<jnfident  conviction  tliat  the  court  is 
wrong  and  that  they  are  right.  Before  saying  this  upon  their  oaths  it  is 
their  duty  to  reflect  whetlier  from  their  study  and  experience  tliey  are  letter 
qualified  to  judge  of  tlu;  law  than  tlie  court.  If,  under  all  these  circum- 
stances, they  ari'  prei)ared  to  say  that  tlie  coiu-t  is  wrong  in  its  exposition  of 
the  law,  the  statute  has  given  tlioin  that  riglit. 

In  this  case  the  jury  must,  as  in  tlieir  judgment  the  evidence  warrants, 
find  any  or  all  of  the  defendants  guilty  or  ai.  »r  all  of  them  not  guilty,  and 
if  in  their  judgment  the  evidence  warrants,  liiey  may,  in  case  tliey  find 
the  defendants  or  any  of  them  guilty,  fix  the  same  penalty  for  all  of  the 
defendants  found  guilty  or  different  penalties  for  the  different  defendants 
found  guilty. 

And  in  cose  they  find  the  defendants,  or  any  of  them,  guilty  of  murder, 
they  should  fix  the  penalty  either  at  death  or  at  imprisonment  in  the  peni- 
tentiary for  life,  or  at  imprisonment  in  the  penitentiary  for  a  term  of  any 
number  of  years  not  less  than  fourteen. 

The  court  then  read  the  following  on  behalf  of  the  defense: 

The  jury  are  Instructed  for  tlie  diffense  as  follows :  The  jury  in  a  crim- 
inal case  are  by  the  statutes  of  lUluois  made  judges  of  tlie  law  and  evi- 
dence; and  under  these  statutes  it  is  the  duty  of  the  jury,  after  hearing  the 
arguments  of  the  counsel  and  the  instructions  of  the  court,  to  act  upon  tlie 
law  and  facts  according  to  their  liest  judgniont  of  sucli  law  and  such  facts. 

The  jury  are  the  judges  of  tlie  law  and  the  facts,  and  you  liave  a  rlglit 
to  disregard  the  instructions  of  the  court,  provided  you,  ujkhi  your  oaths, 
can  say  that  you  believe  you  know  the  law  better  than  the  court. 


PEOPLE  V.  SPIES. 


647 


aust  arise  from 
le  case ;  and  un- 
in  the  graver 
nt  man  to  hesi- 
not  guilty.    If, 
abiding  convic- 
a.s()nable  doubt. 
,  that  the  doubt 
under  the  influ- 
iist  always  be  a 
the  mind  of  any 
asonable  doubt, 
doubt  by  resort- 
res  as  to  possible 
!e.    You  are  not 
believe  as  men ; 
no  doubt  would 

he  law  as  well  as 
I  that  they  know 

0  so.  But  before 
that  they  ai-e  not 
lied  by  their  will 

1  that  the  court  is 
1  their  oaths  it  is 
ce  they  are  better 
all  these  circum- 
1  its  exposition  of 

•idence  warrants, 
m  not  guilty,  and 
in  case  they  find 
Ity  for  all  of  the 
Fereut  defendants 

guilty  of  murder, 
ment  in  the  peni- 
>r  a  term  of  any 

)f  the  defense : 

e  jury  in  a  crim- 
the  law  and  evi- 
al'tor  hearing  the 

•t,  to  act  upon  the 

iw  and  such  facta, 
you  have  a  right 
ujMMi  your  oaths, 

e  court. 


The  jury  are  instructed  that  the  law  presumes  the  defendants  innocent 
in  this  case,  and  not  guilty  as  cluu-ged  in  the  indictment,  unhws  the  contrary 
is  proved,  and  this  presumption  should  continue  .xml  prevail  in  the  minds  of 
the  jury  until  they  are  satisfied  by  the  evidence  beyond  all  reasonable  doubt 
of  the  guilt  of  the  defendants;  and,  acting  on  this  presumption,  the  jury 
should  aciiuit  the  defendants  unless  corstrained  to  lind  them  guilty  l)y  tl\o 
evidence  ccmvineing  them  of  such  guilt  bt^yond  all  riiiusonaltle  doubt. 

The  court  instructs  the  jury  tiiat  upon  the  trial  of  a  criminal  cause,  if  a 
reasonable  doubt  of  any  facts  necessary  to  convict  the  accused  is  raised  in 
the  minds  of  the  jury  by  the  evidence  itself  or  by  the  ingenuity  of  counsel 
uiMni  any  hypotliesis  reasonably  consistent  with  the  evidence,  that  doul.t  is 
decisive  in  favor  of  the  prisoner's  acquittal. 

A  verdict  of  not  guilty  means  no  more  than  this:  That  the  guilt  of  the 
accused  lias  not  l)een  tlemonstratcd  in  the  jirecise,  specific  and  narrow  forms 
prescribed  by  law.  The  eviilence  to  convict  the  accused  must  not  merely 
be  beyond  all  reasonable  doubt  consistent  with  the  hyjiothesis  of  his  or 
their  guilt,  but  it  must  also  be  beyond  all  reasonable  doubt  inconsistent  with 
any  hypothesis  of  innocence  that  can  be  reason.ably  drawn  therefrom. 

The  court  instructs  the  jury  that,  under  tiie  law,  no  jury  should  convict 
a  citizen  or  citizens  of  crime  upon  mere  susjucion,  however  strong,  or 
simply  beer.  :.>e  there  is  v.  preponderance  of  all  the  evidence  in  the  case 
against  him  or  them,  or  simply  because  there  is  a  strong  reason  to  susjiect 
that  he  or  they  is  or  are  guilty;  but  before  the  jury  can  lawfully  Cvnivict, 
they  must  be  convinced  of  the  defendant's  guilt  beyond  all  reasonable  doubt 
The  court  further  instructs  the  jury  that,  in  this  case,  the  law  does  not 
require  of  the  defendants  that  tiiey  prove  themselves  innocent,  but  the  law 
imposes  upon  the  i)rosecution  to  prove  that  the  defendants  are  guilty  in 
manner  and  form  as  charged  in  the  indictment  to  the  satisfaction  of  the 
jury  beyond  all  reasonal)le  doubt;  and,  unless  they  have  done  so,  the  jury 
should  find  them  not  guilty. 

The  jury  are  I'lnther  instructed  that  the  indictment  in  this  case  is  of  itself 
a  mere  accusation  or  charge  against  the  defendants,  and  is  not  of  itself  any 
evidence  of  the  defendants' guilt;  and  no  juror  in  this  case  should  permit 
himself  to  be  to  any  extent  influenced  against  the  defendants  because  or  on 
account  of  tiie  indii^tment  in  this  case. 

The  jury  are  instructed  further  that  the  presumption  of  innocence  is  not 
a  mere  form,  to  be  disregarded  by  the  jury  at  pleasure;  but  it  is  an  essen- 
tial, substantial  part  of  the  law  of  the  land,  and  binding  on  the  jury  in 
this  case ;  and  it  is  the  duty  of  the  jury  to  give  the  defendants  in  tliis  case 
the  full  benefit  of  this  presumption,  and  to  acquit  the  defendants  unless  they 
feel  compelled  to  find  t'lem  guilty,  as  charged,  by  the  law  of  the  land  and 
the  evidence  in  the  case  convincing  them  of  their  guilt,  as  charged,  beyond 
all  reasonable  doubt. 

The  jury  are  instructed  by  the  court  that  in  this  case  the  burden  of  proof 
rests  upon  the  prosecution  to  make  out  and  prove  to  the  satisfaction  of  the 
jury,  beyond  all  reasonable  doubt,  every  material  allegation  in  the  indict- 
ment, and,  Ufiless  that  has  been  done,  the  jury  should  find  the  defendants 

not  guilty. 
The  court  further  instructs  the  jury  that  in  this  case,  to  justify  a  convio- 


lii^l 


m 


ft'" 


"M 


648 


AMEIIICAN  CRIMINAL  REPORTS, 


tion  of  any  one  of  the  defendants,  the  hnrden  is  on  tlie  prosecution  to 
prove  by  credible  I'vidence  to  the  satisfaction  of  the  jury,  beyond  all  rea- 
sonable doubt,  that  such  defendant  is  K"ilt}',  as  cliarj^ed  in  the  indi<tnient, 
of  the  murder  of  Matthias  J.  Def;an;  and  if  the  evidence  fails  thus  to  sat- 
isfy the  Jury  of  the  guilt  of  any  one  or  more  or  all  of  the  defendants,  it  is 
the  duty  of  the  jury  to  acijuit  each  and  every  of  the  defendants  as  to  whom 
there  is  such  failure  of  proof.  Tlu*  jury  are  not  at  liberty  to  adopt  unrea- 
.siniuble  theories  or  sui»positions  in  considering  the  evidence  in  order  to  jus- 
tilvi!  verdict  of  conviction  .as  to  any  defendant;  but  if  any  reasonable  view 
ol  th(>  evidence  is  or  can  be  adojtted  which  admits  of  a  reasonable  conclusion 
that  the  defendants  or  any  of  them  are  or  is  not  guilty  as  chargetl  in  the 
indictment,  or  which  raises  and  sustains  a  reasonable  doubt  of  said  guilt,  it 
is  the  duty  of  the  jury  to  adopt  such  view  of  the  evidence  and  ac(juit  those 
to  whom  that  conclusion  apjjlies, 

A  reasonable  doubt  is  that  state  of  the  case^vhich,  after  a  full  comparison 
and  consideration  of  all  the  evider.ce,  both  for  the  state  and  defense,  leaves 
the  minds  of  the  jury  in  that  condition  that  they  cannot  say  that  they  feel 
ijn  abi<ling  faith  amounting  to  a  moral  certaintj%  from  the  evidence  in  the 
cas<i,  that  the  defendants  are  guilty  of  th(!  charge  as  laid  in  the  indictment. 
If  you  have  such  doubt  —  if  your  conviction  of  the  defendants"  guilt  as  laid 
in  the  indictment  does  not  amount  to  a  moral  certainty  from  the  evidence 
ill  the  case  —  then  the  court  instructs  you  that  you  must  ac(|uit  the  defend- 
ants. 

The  court  further  instructs  the  jury  tiiat  this  is  not  a  civil  ca«e,  but  it 's  a 
criminal  prosecution ;  and  that  the  rules,  as  to  the  amount  of  evidence  in 
this  ca«e,  are  different  from  those  in  a  civil  case,  and  a  mere  i)re|)onderance 
of  evidence  would  not  warrant  the  jury  in  linding  the  defendants  guilty, 
but  before  the  jury  can  convict  the  defendants  they  must  be  satisfied  ol 
their  guilt  beyond  all  rcsisonable  doubt,  and  unless  so  satisfied  the  jury 
should  find  the  defendants  not  guilty. 

The  court  instructs  the  jury  that  in  criminal  cases,  even  where  the  evi- 
dence is  so  strong  that  it  demonstrates  the  probability  of  the  guilt  of  the 
parties  accused,  still  if  it  fails  to  establish  l)eyond  a  reasonable  doubt  the 
guilt  of  the  defendants,  or  of  one  or  more  of  them,  in  manner  and  form 
as  charged  in  the  indictment,  then  it  is  the  duty  of  the  jury  to  acquit  any 
defendant  or  defendants  as  to  whose  giiilt  they  entertain  such  reasonable 
doubt. 

The  jury  are  instructed  that  mere  ])roba'iiiities  are  not  sufficient  to  war- 
rant a  conviction;  nor  is  it  sufficient  that  tin?  greater  weight  or  preponder- 
ance of  the  evidence  supports  the  allegations  of  the  indictnu-nt;  nor  is  it 
sufficient  that  upon  the  doctrine  of  chances  it  is  more  probable  that  the  de- 
fendants are  guilty.  To  warrant  a  conviction  of  the  defendants  or  any 
of  them,  they  must  be  proved  to  be  guilty  so  clearly  and  conclusively  that 
there  is  no  reasonable  theory  upon  which  they  can  be  innocent  when  all  the 
evidence  in  the  case  is  consiiiered  together. 

Your  i)er8onal  opinions  as  to  facts  not  proved  cannot  properly  be  consid- 
ered as  the  basis  of  your  verdict.  You  may  believe  as  men  that  certain 
facte  exist,  but  as  jurors  you  can  only  act  upon  evidence  introduced  uiton 
the  trial,  and  from  that  and  th§t  alone  you  must  form  your  verdict,  un- 


PEOPLE  V.  SPIES. 


t;40 


prosecution  to 
beyoiul  all  rea- 
;he  iiKiictinont, 
lils  tlnis  to  sat- 
lefoiulants,  it  is 
iit8  as  to  whom 
to  adopt  mirea- 
in  Older  to  jua- 
rcasonablo  view 
lable  conclusion 
1  oiiarged  in  the 
of  said  guilt,  it 
md  a<'(iuit  thoau 

full  comparison 
I  defense,  leaves 
y  that  they  feel 
evidence  in  the 
the  indictment, 
nts"  guilt  as  laid 
>m  the  eviden<» 
(juit  the  tlefend- 

l  case,  but  it 's  a 
t  of  evidence  in 
e  i)rei)onderanc(' 
fendantH  guilty, 
t  be  satislied  of 
tisfied  the  jury 

where  the  evi- 
the  guilt  of  the 
nab'e  doubt  the 
anner  and  form 
y  to  acquit  any 
such  reaaonablo 

uflicient  to  war- 
ht  or  preponder- 
•tment;  nor  is  it 
ble  that  the  de- 
fendants or  any 
onclusively  that 
ent  when  all  tlie 

iperly  be  consid- 

nen  that  certain 

ntroduced  uiwn 

our  verdict,  un- 


s 
Ill- 


aided,  unnsflisted,  and  uninfluenccl  l)y  any  opinions  or  presumptions  not 
founded  ujmn  the  testimony. 

The  court  instructs  the  jury  that  they  are  the  sole  judses  of  the  farts  in 
this  case,  and  of  the  credit  to  be  giviMi  to  the  respective  witnesses  x.-lio  have 
testified:  and  in  passing  upon  tlie  credibility  of  siuli  witnesses  ilu-y  liave  a 
right  to  take  into  consideration  their  prejudices,  motives,  or  feeiin},'s  of  re- 
venge, if  any  such  have  been  iM(>v..n  or  sliowu  by  the  evidence  in  this  ca.se; 
and  if  the  jury  l)elieve  from  the  evidence  tliat  any  witness  or  witnessei 
have  knowingly  and  wilfully  testified  falsely  as  to  any  material  fiict 
point  in  this  ca.se,  the  jury  are  at  lilierty,  unless  corroborated  by  other  cie.li 
ble  evidence,  to  disregard  the  testimony  of  such  witness  or  \.itnesses  in, 
tnto. 

The  jury  are  instrtictod  that  if  there  is  any  one  single  fact  proved  to  the 
satisfaction  of  the  jury,  by  a  preiM)n(lerance  of  evidence,  which  is  incon- 
sistent with  the  guilt  of  the  defendants,  or  any  of  them,  this  is  sutticiont  to 
raise  a  rca.sonai)lu  doubt,  and  the  jury  should  acquit  such  of  the  defendants 
as  to  whom  such  fact  has  thus  been  proven. 

That  in  order  to  justify  the  inference  of  legal  guilt  from  circumstantial 
evidence  the  exist(>nce  of  the  inculpatory  facts  nmst  be  absolutely  incom- 
liatible  with  the  innocence  of  the  accused  ui)on  any  rational  theory,  and 
incapable  of  explanation  upon  any  other  reasonable  hypothesis  than  that  of 
their  guilt. 

The  jury  are  instructed  that  the  witnesses  Gottfried  Waller  and  Wilhelm 
Seliger  are  what  is  known  in  law  lus  acconq)lices,  and  that  while  it  is  a  rule 
ot  law  that  a  pctrson  accused  of  crime  may  be  convicted  uj)on  the  uncor- 
roborated testimony  of  an  a('conq)lice,  still  a  jury  should  always  act  upon 
sucli  testimony  with  great  care  and  caution,  and  sui)ject  it  to  caretul  ex- 
amination in  the  light  of  all  the  other  evidence  in  the  case,  and  the  jury 
ought  not  to  convict  tipon  such  testimony  alone,  unless  after  a  careful  ex- 
amination of  such  testimony  they  are  satisfied  bey(md  .any  reasonable  doubt 
of  its  truth  and  that  they  can  safely  rely  upon  it. 

The  jury  are  instructed  that  if  they  believe  from  the  evidence  that  the 
witnesses  Gottfried  Waller  and  Willielm  Seliger  were  induced  to  iiecome 
witnesses  and  testify  in  this  case  by  any  promise  of  imnninity  from  punish- 
ment, or  by  any  lioi»e  held  out  to  them,  or  either  of  them,  by  anyone,  that 
it  would  go  easier  with  them  in  case  they  disclosed  who  their  confederates 
were,  or  in  case  they  inqjlicated  some  one  else  in  the  crime,  tlien  the  jury 
should  take  such  facts  into  consideration  in  determining  the  weight  which 
ought  to  be  given  their  testimony  thus  obtained  and  given  under  the  influ- 
ence of  such  i)romise  or  hope. 

If  the  jui-y  believe  from  tlu*  evidence  that  any  of  the  witnesses  for  the 
prosecution  were  induced  or  influenced  to  become  witnesses  and  testify  in 
this  case  by  any  promise  or  intimation  of  inununity  from  punishment,  or 
by  any  hope  held  out  to  them  by  any  one  that  it  would  be  better  for  them 
or  go  easier  with  them  in  case  of  their  testifying  in  the  case,  then  the  jury 
should  take  .such  fact  into  consiih'ration  in  determining  the  weight  which 
ought  to  be  given  to  such  testimony  thus  oi)tained,  and  given  under  the  in- 
fluence of  such  i)romise  or  liope.  Such  testimony  should  only  be  received 
by  the  jury  with  great  caution  and  scrutinized  with  gieat  care. 


w 


650 


AMERICAN  CRIMINAL  REPOIITS. 


The  court  instructs  the  jury  that,  while  the  statute  of  tliiss  state  i»)*i)vi<lo3 
that  a  person  charged  with  crime  may  testify  in  liis  own  belialf,  he  is  under 
no  obligation  to  do  so,  and  the  statute  expressly  declares  that  his  neglect  to 
testify  sliall  not  create  any  presumption  against  him. 

The  jury  are  instructed  that  in  passing  upon  the  testimony  of  defendants' 
witnesses  in  this  case  they  should  endeavor  to  reconcile  their  testimony  with 
the  Ix'lief  that  all  tiie  witnesses  have  endeavored  to  tell  the  truth,  if  tlu^y 
can  reas«mably  do  so  under  the  evidence;  and  if  reasimably  possible,  attribute 
any  differences  or  contradictions  in  their  testimony,  if  any  exist,  to  mistake 
or  misrecoUection  rather  than  to  a  wilful  intention  to  swear  falsely. 

The  jury  have  no  right  to  disregard  tlie  testimony  of  the  defendants  on 
the  ground  alone  that  they  are  defend.ants  and  stand  charged  with  the  com- 
mission of  a  crime.  The  law  presumes  the  defendants  to  lv«  innocent  until 
they  are  proved  guilty,  and  the  law  allows  them  to  testify  in  their  own 
behalf,  and  the  jury  should  fairly  and  impartially  consider  their  testimony, 
together  with  all  the  other  evidence  in  tlie  case. 

The  court  further  instructs  the  jury  that  where  the  vei'bal  a<lmission  of  a 
person  charged  with  crime  is  offered  in  evidence  the  wliole  of  the  admission 
must  be  taken  together,  as  well  tiiat  part  which  makes  for  tlie  accused  as 
that  which  may  make  against  him ;  and  if  part  of  the  statement  which  is  in 
favor  of  the  defendant  is  not  disproved  and  is  not  apparently  iiiiprcjbablo  or 
untrue  when  considered  with  all  the  other  evidence  in  tiie  case,  then  such 
part  of  the  statement  is  entitled  to  as  mucli  consideration  from  the  jury  as 
any  other  part  of  the  statement. 

The  jury  are  instructed  that  it  would  be  highly  improper  and  wrong  for 
tliem  to  regard  any  statements  of  the  prosecuting  attorneys  that  are  not 
based  on  the  evidence  in  the  case,  if  any  such  have  been  made,  as  entitled 
to  any  weight  whatever  in  this  cjise. 

The  jury  are  instructed,  as  a  matter  of  law,  that  where  a  conviction  for  a 
criminal  offense  is  sought  upon  circumstantial  evidence  alone,  the  ik.'01)1o 
must  not  only  show  by  a  preponderance  of  evidence  that  the  alleged  facts 
and  circumstances  are  true,  but  they  must  be  such  facts  and  circumstances 
as  are  absolutely  incompatible,  upon  any  reasonable  hypothesis,  with  the 
innocence  of  the  accused,  and  incapable  of  explanation,  upon  any  reasonable 
hypothesis  other  than  that  of  the  guilt  of  the  accused.  And  in  this  case,  if 
all  the  facts  and  circumstances  relied  on  by  the  peojjle  to  secure  a  convic- 
tion can  be  reasonably  accounted  for  upon  any  theory  consistent  with  the 
innocence  of  the  defendants,  or  any  of  them,  then  the  jury  should  acfjuit 
the  defendants,  or  such  of  them  as  to  whom  the  facts  proven  can  thus  be 
accounted  for. 

It  is  not  enough  to  warrant  the  conviction  of  a  person  accused  of  crime 
that  he  contemplated  the  commission  of  such  crime.  The  actual  commis- 
sion of  such  crime  by  the  accmsed,  or  the  proof  of  such  facts  as  will  satisfy 
the  jury  beyond  all  reasonaljle  doubt  of  the  guilt  of  the  accused  must  be  pre- 
sented, and  if  any  reasonable  hyiwthesis  exists  that  such  crime  may  have 
been  committed  by  another  in  no  way  connected  with  the  defendants,  the 
accused  should  be  acquitted. 

The  jury  are  further  instructed  that  if  the  evidence  leaves  a  reasonable 
doubt  in  the  mind  of  the  jury  whether  the  defendants  are  guilty  of  the 


PEOPLE  V.  SPIES. 


f551 


state  jo-Dvidos 
ilf,  lie  is  uiKlor 
t  his  neglect  to 

of  dofondants' 
toBtiniony  with 
B  truth,  if  tliey 
BsibU',  nttrihute 
xist,  to  mistako 
falsely. 

deleudauts  on 
I  witli  tho  com- 
n  innocent  until 
:y  in  their  own 
iheir  testimony, 

1  uthnission  of  a 
of  the  adinihsitiu 
r  the  accused  as 
inent  which  is  in 
ly  improbable  or 
1  case,  tlien  such 
from  the  jury  as 

jr  and  wronj?  for 
iys  that  are  not 
made,  as  entitled 

I  conviction  for  a 
alone,  the  iK-oplo 
the  allet^ed  facts 
nd  circumstances 
othesis,  with  the 
)n  any  reasonable 
.nd  in  tliis  case,  if 
)  secure  a  convic- 
)nsistent  with  tho 
iry  should  acquit 
oven  can  thus  be 

accused  of  crime 
e  actual  couimis- 
cts  as  will  satisfy 
used  nuist  be  jire- 

crime  may  have 
le  defendants,  the 

ives  a  reasonable 
are  guilty  of  the 


crime  with  which  they  are  charged  in  the  indictment,  then  the  jury  should 
find  the  defendants  not  guilty ;  although  the  evidence  may  show  conduct  of 
no  less  turpitude  than  the  crime  charged,  that  is  not  enough  to  authorize  a 
conviction  in  this  trial. 

The  court  further  instructs  the  jury  that  the  allusions  and  references  of 
the  prosecuting  attorneys  to  the  supposed  dangerous  character  of  any  views 
entertained  or  principles  contended  for  by  the  defendants,  or  any  of  them, 
should  in  no  way  influence  or  i)rejudice  your  minds  against  the  defendants 
in  this  case ;  your  duty  is  discharged  when  you  have  determined  their  guilt 
or  innocence  of  the  charge  contained  in  this  indictment,  and  there  is  no 
other  question  involved  in  this  case. 

Individuals  and  communities  have  the  legal  right  to  arm  themselves  for 
the  defense  and  protection  of  their  persons  and  property,  and  a  proposition 
by  any  person,  publicly  proclaimed,  to  arm  for  such  protection  and  defense 
is  not  an  offense  against  the  laws  of  this  state. 

The  jurj'  lu-e  instructed  that  if  the  defendants  or  some  of  them  agreed 
together  or  witli  others  that  in  tl»e  event  of  the  workingmen  or  strikers 
being  attack*  d  that  they  (defendants)  would  assist  the  strikers  to  resist  such 
attack,  before  you  can  And  that  such  agreement  constituted  a  conspiracy 
you  must  be  satisfied  beyond  all  reasonable  doubt  that  such  contemplated 
or  anticipated  assault  or  attack  to  be  resisted  as  aforesaid  vas  justified  and 
lawful,  and  that  such  contemplated  resistance  was  illegal.  And  if,  on  the 
other  hand,  such  contemplatetl  or  anticipated  assault  or  attack  was  unjusti- 
fied and  illegal,  and  such  contemplated  resistance  simply  the  oi)posing  of 
force  wrongfully  and  illegally  exercised  by  force  sufficient  to  repel  the  said 
assault,  then  the  facts  assumed  in  this  instruction  do  not  constitute  c<>;i- 
spiratiy. 

The  defendants  do  not  assume  the  burden  of  proof  in  this  case  at  any  stage 
of  the  proceetlings,  and  tiie  burden  is  not  cast  upon  them  to  prove  that  the 
jwrson  who  threw  the  bomb  was  not  acting  under  their  advice,  teaching  or 
procurement ;  therefore,  unless  the  prosecution  has  established  in  the  minds 
of  the  jury,  beyond  all  reasonable  doubt,  that  either  some  of  the  defendants 
threw  the  said  bomb,  or  that  the  person  who  did  so  throw  the  same  was  act- 
ing under  the  advice  and  procurement  of  the  defendants,  or  some  of  them, 
the  defendants  and  all  of  them  should  be  acquitted.  Such  advice  may  not 
necessarily  be  special  as  to  the  bomb,  but  general  so  as  to  include  it. 

It  will  not  do  to  guess  away  the  lives  or  liberty  of  our  citizens,  nor  is  it 
proper  that  the  jury  should  guess  that  the  person  who  threw  the  bomb  which 
killed  Degan  was  instigated  to  do  the  act  by  the  procurement  of  the  defend- 
ants or  any  of  them.  That  fact  must  1k'  established  Iwyond  all  reasonable 
doubt  in  the  minds  of  the  jury,  and  it  will  not  do  to  say  that,  because  the 
defendants  may  have  advised  violence,  that  therefore,  when  violence  came, 
it  was  the  result  of  such  advice.  There  nmst  be  a  direct  connection  estal- 
lished  by  credible  testimony  between  the  advice  and  the  consum  'utiou  of  tl  le 
crime?  to  the  satisfaction  of  the  jiny  beyond  a  reasonable  doubt. 

Although  the  defendants,  or  some  of  them,  may  have  spt)keu,  and  also 
published  their  views  to  the  effect  that  a  social  revolution  should  be  brought 
about  by  force,  and  that  the  officers  of  the  law  should  be  resisted,  and  to 
this  end  dynamite  should  be  used  to  the  extent  of  taking  human  Ufe;  that 


«5?  '!^ 


1 1 


lu 


m^i 


652 


AJIKKU'AN  CKIMINAL  RKP0RT8, 


persons  slunilil  arm  to  resist  the  law,  oml  tliat  the  law  shouM  be  throttled 
and  killed,  and  nlth<>u>;h  such  Inn^iinKe  niiKht  cauhe  porHoiis  to  tlesiru  to 
carry  out  the  advice  given,  as  aforesaid,  and  do  the  act  which  caused  Offi- 
cer Degan's  death,  j'et  the  btnnh  may  have  lieen  thrown  and  D«'gan  killed  by 
some  one  unfamiliar  with  and  uni)ronipted  by  the  teachings  of  the  defend- 
ants or  of  any  of  them.  Therefore  the  jin-y  must  lie  s'ltislied  l)eyond  all 
reasonable  doubt  that  the  person  throwing  said  l)omb  was  acting  as  the  re- 
sult of  the  teaching  or  encouragement  of  the  defendants  or  some  of  them, 
l)ef ore  the  defendants  can  be  held  liable  therefor;  and  this  you  must  find 
from  the  evidence. 

It  is  not  enough  to  warrant  the  conviction  of  the  defendants  in  that  Lingg 
may  have  maiuifactured  the  bomb  the  explosion  of  which  killed  Degan. 
He  must  have  aided,  abetted  or  advised  the  exploding  of  the  bomb,  or  the 
doing  of  some  illegal  act,  or  the  doing  of  a  legal  act  in  an  unlawful  man- 
ner, in  the  furtherance  of  which  Degan  was  killed. 

The  court  further  instructs  the  jury  that  before  a  party  can  be  lawfully 
convicted  of  the  conunission  of  a  crime  under  our  statute  concerning  m;- 
cessories,  it  is  incu.nbent  uiwu  the  prosecution  to  show  beyond  all  reason- 
able doul't,  by  credible  evidence,  that  the  crime  was  committed  by  sonu- 
person  or  persons  acting  under  the  advice,  aid,  encoui'agement,  alx'tting  or 
procurement  of  the  defendant  or  defendants  whoso  conviction  is  asked. 
Though  tl.e  jury  should  believe,  from  the  evidence,  that  a  party  in  fact  ad- 
vised generally  the  commission  in  certain  contingencies  of  acts  amounting 
to  crime,  yet  if  the  act  complained  of  was  in  fact  committed  by  some  third 
party  of  his  own  mere  volition,  batri'd,  malice  or  ill-will,  and  not  materi- 
ally influenced,  either  <lirectly  or  indirectly,  by  such  advice  of  the  party 
charged,  or  if  he  was  actuateil  only  by  the  advice  of  other  parties  not 
charged,  and  for  whose  advice  the  defendants  are  not  resiKjnsible,  the 
jKurty  charged  wouhl  not  in  such  c£jse  l)e  held  resi)onsiblc. 

If  the  jury  should  find  that  the  evening  of  May  3d,  at  No.  54  West  Lake 
street,  at  a  meeting  at  which  some  of  the  defendants  were  present,  a  propo- 
sition was  adopted  that,  in  the  event  of  a  collision  between  the  jiolice  force, 
militia  or  firemen  on  one  side  and  the  striking  laborers  on  the  other,  it  was 
agreed  that  certain  f)rganizati>'iis,  of  wliicli  some  of  the  defendants  were 
raeml)ers,  should  Tucet  at  certain  designated  | dace  in  the  cit}' of  Chicago: 
that  a  committee  should  atten<l  i)nblic  places  and  jiuhlic  meetings  where  an 
attack  by  the  police  an<l  others  might  be  expected,  and  in  the  event  of  such 
attack  being  made  report  the  same  to  said  armed  sections  as  aforesaid,  to 
the  end  that  such  attack  might  be  resisted  and  the  police  stations  of  tin- 
city  destroyed;  and  if  the  jury  further  find  that,  on  the  night  of  May 
4th,  some  person  unknown  went  to  a  meeting  at  the  hay-market  and 
threw  a  bomb  into  the  assembled  police,  the  explosion  of  which  killed 
Matthias  J.  Degan,  and  that,  from  all  the  evidence  in  the  case,  the  jury  are 
not  satisfied  beyond  all  reasonable  doubt  that  said  act  causing  the  death  ol 
said  Degan  was  the  result  of  any  act  in  furtherance  of  the  conunon  design 
as  herein  stated,  but  may  have  been  the  unauthorized  and  the  individujil 
act  of  some  pt'rson  acting  upon  his  own  resiMmsibility  and  volition, —  then 
none  of  the  defemlants  can  be  held  responsible  therefor  on  accoimt  of  said 
West  Lake  street  meeting. 


PEOPLE  V.  SPIES. 


688 


<1  be  throttlod 
M  tt>  duHii'u  to 
h  cniiHed  Offi- 
Ot'};an  killed  by 
(if  tho  dofend- 
U'd  iK'yond  all 
(tinj?  as  tlie  re- 
Hoiiie  of  them, 
you  imiHt  find 

t8  in  that  Lingg 
h  killed  Dcgan. 
»e  btimb,  or  the 
unlawful  man- 

;an  be  lawfully 
concerning  a<;- 
yond  all  rcason- 
niittcil  by  some 
ent,  alH'tting  or 
iction  is  asked, 
party  in  fact  ad- 
nets  amounting 
'd  by  some  third 
and  not  niateri- 
ce  of  the  party 
ther  parties  not 
respijnsible,  the 

o.  54  West  Lake 
irescnt,  a  propo- 
the  jiolice  force, 
the  other,  it  was 
ihifendants  wen- 
city  of  Chicago : 
'otings  where  an 
he  event  of  sudi 
n  as  aforesaid,  to 
)  stations  of  the 
le  night  of  May 
hay-market  and 
of  which  killeil 
!ase,  the  jury  ari- 
sing the  death  <>! 
common  desigi  i 
id  the  individiiiil 
1  volition, —  thi'ii 
1  account  of  said 


The  court  instructs  the  jury,  in  the  words  of  the  stntiito,  that  man- 
■laughter  is  the  unlawful  killing  of  a  human  being  without  uiuli.e,  expresa 
or  implied,  and  wiih<mt  any  mixture  of  deliberation  whiittvir  It  must  be 
voluntary  upon  a  swhlen  l.uitt  of  passion,  caused  by  provocation  ai.paivntly 
sufficient  to  make  the  passion  imsistible,  or  involuntary  in  the  commission 
of  an  unlawful  act,  or  a  lawful  act  without  due  cause  or  circwmsiioction 
Whoever  is  guilty  of  manslaughter  shall  be  imi.risoncd  in  the  penitcntiarv 
for  his  natural  life  or  for  any  number  of  years.  Ji  ilie  ar<ust'd  is  founil 
guilty  by  the  jury  they  shall  fix  the  punishment  by  their  verdict.  The  juiv 
are  instructed  that,  under  an  indictment  for  murder,  n  party  accused  may 
be  found  guilty  of  manslaughter;  and  in  this  « ;i sc  if.  from  a  full  iui.l  care- 
ful consideration  of  all  the  evidence  before  you,  you  believe,  beyond  a  rea- 
sonable doubt,  that  the  defendants,  or  any  one  of  them,  are  guilty  of 
niuualaughtcr,  you  may  so  find  by  your  verdict. 

Judge  Gary  instructed  the  jury,  of  his  own  motion,  as  fol- 
lows. 

The  statute  reciulres  that  instructions  by  the  court  to  the  jury  shall  be  in 
writing,  and  only  relate  to  the  law  of  the  case.  The  practice  imdcf  the 
statute  is  that  the  counsel  iirejiare  on  each  side  a  set  of  instructions  and  pre- 
sent them  to  the  court,  and,  if  approved,  to  be  read  by  the  court  as  the  law 
of  the  case. 

It  may  happen,  by  reason  of  the  great  number  presented  and  the  hurry 
and  c(mfusion  of  passing  on  them  in  the  midst  of  the  trial,  with  a  largo 
audience  to  keep  in  order,  that  there  may  be  some  apparent  inconsistency 
in  them,  but  if  they  are  carefully  scrutinized  such  inconsistency  will  jirob- 
ably  disappear;  in  any  event,  howevcf,  the  gist  and  pith  of  all  is,  that  if 
advic(*  and  encouragement  to  murder  was  given,  if  murder  wjis  done  in 
pursuance  of  and  materially  induced  by  such  advice  and  encouragement, 
then  lliose  who  gave  such  advice  and  encouragement  are  guilty  of  the  mur- 
der. Unless  the  evidence,  eitlii-r  direct  or  cir<unistantial,  or  both,  proves 
the  guilt  of  one  or  more  of  the  defendants  upon  this  jtrijiciple,  so  fully  that 
there  is  no  reasonable  doul)t  of  it,  your  duty  to  them  reijuin-;  you  to  acquit 
them.  If  it  does  so  jirove,  then  your  duty  to  the  state  re<jui:es  you  to  con- 
vict whoever  is  so  proved  guilty.  The  case  of  each  defendant  should  be 
considered  with  the  same  care  and  scrutiny  as  if  he  alone  were  on  trial.  If 
a  conspiracy  having  violence  and  murder  as  its  object  is  fully  proved,  then 
the  acts  and  declarations  of  each  conspirator  in  furtherance  of  the  con- 
spiracy are  the  acts  and  declarations  of  each  one  of  the  conspirptors ;  but 
the  declarations  of  any  conspirator  before  or  after  May  4th,  which  are 
merely  narrative  as  to  what  had  been  or  would  be  done,  and  not  made  to 
aid  in  carrying  into  effect  the  object  of  the  conspiracy,  are  only  evidence 
against  the  one  who  made  them.  What  are  the  facts  and  what  is  the  truth 
the  jury  must  determine  from  the  evidence  and  from  that  alone.  If  there 
are  any  unguarded  expressions  in  any  of  the  instructions  which  seem  to  as- 
sume the  existence  of  any  facts,  or  to  be  any  intimation  as  to  what  is  proved, 
all  such  expressions  must  be  disregarded  and  the  evidence  only  looked  to  to 
determine  the  fact. 


,f 


654 


AMERICAN  CRIMINAL  REPORTS. 


The  jury,  at  2: 50  P.  M.,  August  18th,  retired  to  consider  of 
their  verdict,  and  at  the  opening  of  court  next  morning  re- 
turned the  following  verdict: 

We,  the  jury,  find  the  defendants,  August  Spies,  Michael  Schwab,  Samuel 
Fielden,  Albert  R.  Pfa,r8ons,  Adolph  Fischer,  George  Engel  and  Louis  Lingg, 
guilty  of  murder  in  manner  and  form  as  charged  in  the  indictment  and  fix 
the  penalty  at  death.  We  find  the  defendant,  Oscar  W.  Neebe,  guilty  of 
murder  in  manner  and  form  as  charged  in  the  indictment,  and  fix  the  pen- 
alty at  imprisonment  in  the  penitentiary  for  fifteen  years. 


M 


5  consider  of 
morning  re- 


chwab,  Samuel 
id  Louis  Lingg, 
ictmeut  and  fix 
'Jeebe,  guilty  of 
nd  fix  tlie  pen- 


INDEX. 


ABDUCTION. 

1.  Change  of  venue.-  Where  the  venue  of  an  indictment  or  information 

C^i^":^^^  ^  TT^'^i^i  '!^?''^'  '^""'•t'  "" J*-^"-  section  231  of  Criming 
Code,  the  c  erk  of  tlie  distnrt  court  in  which  the  case  is  pending  should 
make  a  full  transcript  of  the  record  and  proceedings^  wefl  as  the 
order  of  rernoval  and  transmit  the  same,  duly  certified  under  the  seal 
ot  the  court,  to  the  clerk  ot  the  court  to  which  the  removal  is  directed 
to  be  made.    State  v.  Goodwin,  j 

3.  Indictment  — Two  or  more  felonies.- While  two  or  more  felonies 

can  be  jouiod  ni  one  indictment  or  informaticm,  they  must,  as  a  rule, 
be  m  separate  counts.  The  rule  is  less  imperative  as  applied  to  prose- 
cutions lor  misdemeanors.  j^i 

8.  Taking  female  for  puostiti:tion  and  coNciBiNACiE  — Duplicity — 
Where  an  information  charges  that  defendant  took  away  a  female 
under  eighteen  years  of  age  from  her  father,  without  his  consent,  for 
purposes  ot  prostitution  and  concubinage,  there  is  a  joinder  of  twodis- 
tiiict  offenses  m  one  count,  and,  hence,  tl*  in'ornuition  is  bad  for 
duplicity.  j^^ 

ACCESSORY  BEFORE  THE  FACT  —  ACCESSORY  AFTER  THE  FACT. 

1.  Aiding  to  conceal  dead  body.—  Where  the  testimony  tends  to  show 

that  a  ilefendant  charged  with  murder  was  not  personally  present  at 
the  killing,  and  that  the  killing  was  luit  done  in  pursuance  of  any 
agTeement  or  undertaking  to  whicii  lie  was  a  partv,  but  simply  that 
defendant  aided  in  concealing  tiie  dead  bodv,  it  would  be  error  to  re- 
fuse to  instruct  the  jury  that  if  they  so  believe  they  should  acquit. 
People  V.  Keefer,  g 

2.  When  a  person  on  retrial  may  be  convicted  of  jiurder  op  first 

DEGREE. —  A  deleiidant  imlicted  for  murder  and  found  guilty  of  mur- 
der in  the  second  degree,  who,  on  his  own  motion,  secures  anew  trial, 
may,  on  a  retrial,  be  convicted  of  murder  in  the  first  degree.  Id, 

8.  Accessory  before  the  fact.— In  cases  of  felony,  when  the  crime  was 
committed  througli  a  guilty  instrument,  tlie  instigator  is  viewed  as  an 
accessory  liefore  the  fact,  and  as  such  he  must  be  indicted  and  tried. 
People  V.  Lyon,  10 

4.  No  ACCESSORIES  IN  MISDEMEANORS.—  Ill  misdemeanors  there  are  no  ac- 

cessories.    All  who  aid  or  participate  are  principals.  Id. 

5.  AcCEssoiiY'  BEFORE  THE  PACT.—  All  accessory  before  the  fact  is  e(pially 

guilty  with  the  principal  in  a  case  of  murder.    Min  ich  v.  People,      20 


ACCOMPLICE. 

Corroboration'  op  testimony  of  an  accomplice.— The  testimony  of  an 
accomplice,  c<trroborated  by  evidence  of  an  adniission  maiie  by  the 
dofenilant  connecting  him  with  the  killing,  is  sufficient  to  sustain  a 
coQvictiou  of  mmdor ;  and  the  testimony  of  a  constable,  to  whom  the 


656 


AMERICAN  CRIMINAL  REPORTS. 


witness,  who  testified  to  the  admission,  had  repeated  the  converfiation, 
is  admissible  to  fix  the  date  of  such  admission.  People  v,  Zimmer- 
man, 34 

2.  Accomplice  testimony— Evidence  — Charge  of  the  court.— If  the 
female  with  whom  the  incestuous  intercourse  is  alleged  to  liave  been 
had  is  sliown  to  luive  knowingly,  voluntarily,  and  with  tlio  same  in- 
tent which  actuated  tlie  accused.  unite<l  with  him  in  the  corninission 
of  the  olfense,  she  is  an  accomplice  in  the  crime,  and  her  uncorrob- 
orated testimony  is  insufficient  to  supjMat  a  conviction  of  the  accused. 
On  tiie  other  hand,  if  tlie  evidence  sliows  that,  in  tiie  commission  of  the 
incestuous  act,  she  was  the  victim  of  force,  tlumils,  fraud  or  undue 
influence,  so  that  she  did  not  a<'t  voluntarily,  and  did  not  join  in  the 
commission  of  the  act  with  the  same  intent  that  actuated  the  accused, 
then  she  is  not  an  accomplice,  and  a  conviction  might  stand  even  upon 
her  uncorroborated  testimony.    Mercer  v.  lite  State,  292 

8.  Prosecuting  witness  as  accomi'Lkk  — Evidence.— In  this  case  it  is 
held  that  the  testimony  of  the  accomiilice  was  sufficiently  corroborated 
by  the  other  evidence  to  justify  tlie  verdict.  Id, 


;^ 


ADMISSIONS  AND  CONFESSIONS. 
See  Confessions. 

APPEAL. 
See  Practice,  9. 

ARRAKiN.MKNT. 
See  I'RACTicE,  4,  10. 

ARREST, 

1.  Arrest  by  a  city  marshal  without  warrant —  Constrcction.— 

In  reaching  a  determination  as  to  tlie  power  of  the  niarslial  of  a  nm- 
nicii)al  corporation  to  arrest  witlioul  warrant,  section  1811)  of  the  Ro- 
vis,Ml  Statutes,  which  makes  it  the  duty  of  tliat  (tllicer  to  arrest  any 
person  "in  tlie  a<'t  of  comniitting  any  offense,"  e*.,  and  section  7129 
of  same  statutes,  whicli  m:ikes  it  the  duty  of  certain  officers  nanied, 
including  such  marshal,  "to  arrest  and  detain  any  person  found  vio- 
lating any  law,"  etc.,  should  be  construe<l  together  to  determine  the 
extent  of  such  power.     Jialkird  v.  State,  30 

2.  Carrvino  concealed  Wi'..\ro\s. —  Under  these  sections  a  marshal  of  a 

municip;d  corporation  is  authori/iM|,  without  warrant,  to  arrest  a  jier- 
son  found  on  the  public  streets  of  the  corporation  carr\'ing  concealed 
weapons  contrary  to  law,  all hoiigii  he  ha-s  no  previous  Unowii'dge  of 
the  fact,  if  he  acted  bn)i(i  jUle,  and  upon  such  information  iis  induces 
an  bfjiiest  belief  that  the  person  arrested  is  in  tlie  act  of  violating  the 
law.  Id. 

8.  Ari!K.>^t  without  warrant. —  When  an  officer  is  emi)owcred  by  law  to 
arrest  without  warrant,  be  is  not  in  every  case  IkmuhI  to  give  the  j)art\' 
to  be  arrested  clear  and  distinct  notice  of  his  purpose  to,  and  also  of 
the  fa«t  that  he  is  legally  (pialifled  to,  make  the  arrest.  SItuvlin  v. 
Com.,  41 

4.  Where  the  offender  in  (pu'stion  is  openly  engaged  in  breaking  the  law,  it 
is  sufficient  for  the  officer  to  iinnoiince  his  otlicial  position  anddeniiind 
a  surrender.  If  this  is  refused,  the  officer  is  not  liable  to  indictment 
for  assault  by  reason  of  the  fact  that  he  used  force  to  secure  his  pris- 
oner. Id. 


INDEX. 


657 


3  conversation, 

ole  V.  Zimmcr- 

34 

:;ouRT.—  If  the 
I  to  have  been 
I  the  wune  in- 
he  commission 
her  uncoriob- 
)f  the  acnisod. 
imiission  of  the 
and  or  iukIuo 
lot  join  in  the 
e<l  t\w  accused, 
taud  even  upon 
292 

1  this  case  it  is 

,ly  corroborated 

^  Id. 


^ONSTRI'CTIOX.— 

liuslial  of  a  nm- 
1811)  of  the  ll(!- 
r  to  arrest  any 

md  section  7t2'J 
ollicers  nauic'l, 
rsoii  found  vio- 

,o  determine  the 
30 

s  a  marshal  of  a 
to  arrest  a  i>er- 
rvint;  concealed 
LIS  UtiowiedKe  of 
ation  as  induces 
of  violating  the 
Id. 

iwered  bv  law  to 
to  tjive  tlie  party 
se  to,  and  also  of 
est.  Shovlin  v. 
41 

■akinK  the  law,  it 

tion  ajul  demand 

)le  to  indictment 

secure  liia  priti- 

Id. 


ARSON. 

1.  Dependant  cannot  be  convicted  on  confkssions  alone  -In  a  crim- 
inal  ca«".  a  c.mvictiou  cannot  be  had  on  the  extra-ju.lieial  confessions 
of  the  deiendant,  without  proof  aluuule  of  tlie  corpus  cUUcti-  but 
diret .  and  positive  proof  of  tliat  fact  is  not  indispensable,  mnslow  v. 
J.  he  otiiidf  jrt 

3.  The  court  diu.ides  on  the  competency,  the  jury  on  the  suffi- 

ciency, OF  KV1UE.\CE.-Tlie  sulliciency  of  tiie  luoof  of  the  corpus 
delicti  is  not  a  ipiestion  of  law  for  the  decision  of  the  court  but  a  niu's- 
tion  of  fact  f(jr  the  jury  to  deciile ;  and  wliile  the  court  must  deci.le  in 
the  fii-st  instance,  whether  the  evidence  adduced  is  prima  facie  suHi- 
cient  to  go  to  the  jury,  the  jury  are  not  bound  to  hold  it  sutHcient 
because  the  court  has  atimitteil  it.  jd^ 

8.  Corpus  demcti.— In  a  jn-osecution  for  arson,  the  corpus  delicti  ia  not 
the  fact  that  a  house  was  burned  down,  but  that  it  was  burned  by  the 
wilful  act  of  some  person  criminally  responsible  for  his  acts,  and  not 
by  natural  or  accidental  causes.  j^, 

4,  Footprints.— Evidence  showing  that  the  fire  occurred  about  midnight, 

at  a  part  of  the  house  in  which  no  fire  had  been  used  during  the  day 
or  night;  and,  when  first  discovered,  was  burning  on  the  outside  of 
the  house;  and  tiiat  a  fresh  track  was  discovered  the  next  morning,  in 
a  lane  leading  from  the  jniblic  road  to  the  house,  which  track  corre- 
si)on(led  with  the  defendant's,  is  prima  facie  sufficient  pr(X)f  of  the 
corpuH  di'livti  to  render  the  dctendant's  confessions  admissible  as  evi- 
dence, /d. 

6.  Threats.— The  defendant's  thnats.  or  declarations  in  the  nature  of 

threats,  luifore  the  commission  of  the  offense  charged,  are  admissible 
as  evidence  against  him.  Jd, 

Q.  Ill-feemno  as  hearing  ci'ox  motive.— If  there  was  a  controversy 
betwtH'ii  the  defeiiiiant  and  the  occupants  of  the  house  burned,  jis  to 
the  ownership  of  the  property,  and  it  was  shown  that  the  defendant 
knew  the  occupants  had  a  certificate  of  entry  for  the  land,  which  cer- 
tificate wjis  in  the  house  at  the  time  of  the  alleged  burning,  proof  of 
these  facts  would  bt;  admissible,  as  tending  to  show  a  motive  for  the 
burning;  but  the  fact  being  only  collaterally  and  hici(lent.ally  in  issue, 
it  woulil  not  be  necessary  to  prove  the  entry  by  a  certified  transcript.  Id, 

7.  Evidence  to  show  motive. —  For  the  purpose  of  showuig  Ji  motive  it 

is  competent  in  a  prosecution  for  arson  to  prove  an  overvaluation  of  in- 
sured projierty  destroyed  by  tire,  and  a  demand  of  the  insurer  for  such 
value.    Stitz  v.  State,  48 

8.  Explanation  of  ti'.stimony  offered  to  show  motive,— Where  evi- 

dem:e  tending  to  show  an  t)ver  valuation  of  property  is  given,  and  there  is 
also  evidence  which  teiuls  to  show  that  it  was  made  by  mistake  of  fact 
or  error  of  judgment,  the  iiccused  is  entitled  to  an  instruction  that,  if 
the  overvaluation  arose  from  such  cause,  it  is  not  to  be  taken  as  evi- 
dence of  a  criminal  motive  or  intent.  Jd, 

it.  Arson  —  t'lUcuMSTAXTiAl.  eviden'ce. —  Evidence  that  liorse-shoe  tracks 
led  from  the  place  where  a  crime  was  committed  to  the  barn  of  the 
person  accused  of  committing  such  crime,  and  that  the  tracks  corre- 
sponded to  the  shoes  on  a  horse  owned  by  the  accused,  will  not  of  itself 
warrant  a  conviction.    Sttite  r.  Melick,  '>2 

10.  Evidence  in  rehuttai,.— In  suchcase.  the  accused  ought  to  be  allowed 
to  prove  that  the  horse  could  not  wear  a  siioe  of  the  kind  and  (linu'ii 
sions  given  a 
ness. 


the  size  of  the   trac 


niciismed  bv  the  prosecuting  wit- 
id. 


See  Autrefois  A cyirr  — Autrefois  Co-nvict. 
Vol.  V— 42 


658 


AMERICAN  CRIMINAL  REPORTS. 


ASSAULT  AND  BATTERY. 


1.  Assault  with  revolver  —  Repetition  of  threatenino  acts.— In 
the  case  of  a  prosecution  for  assault  in  pointing  a  cocked  revolver  at 
prosecuting  witness  and  driving  him  from  a  certain  road  which  de- 
fendant had  prohibited  him  from  traveling,  it  is  not  error  to  receive 
evidence  showing  that  he  pointed  the  revolver  at  witness  more  than 
once,  when  all  such  acts  point  to  but  one  transaction,  and  tend  to  show 
the  defendant's  a?um«s.    State  v.  Montgomery,  54 

8.  Tresi'asseb.—  An  assault  with  a  revolver  cannot  ho  justified  by  proof 
that  the  person  assaulted  was  a  trespasser,  and  that  the  purpose  of  the 
assault  was  to  remove  him  from  the  premises.  Id, 


ASSAULT  WITH  INTENT,  ETC. 

1.  Assault  with  intent  to  wound  or  kill  —  Intoxication.—  Intoxi- 
cation is  no  defense  to  a  prosecution  for  crime:  but,  in  some  cases, 
evidence  of  intoxication  is  admissible  to  show  that  no  crime  has  been 
committed,  or  to  show  the  degree  or  grade  of  a  crime;  and,  in  a  prose- 
cution for  maliciously  shooting  witii  intent  to  wound,  evidence  tliat 
the  defendant  was  so  much  intoxicated  that  he  could  not  form  or  have 
Buch  intent  is  admissible.     C'line  v.  State,  57 

8.  Manslaughter  —  Instruction.—  In  a  ])rosecution  for  maliciously  shoot- 
ing with  intent  to  wound  or  kill,  it  is  error  to  charge  that  the  defend- 
ant should  be  found  guilty  of  such  felony,  if  he  might  have  Ijeen 
properly  convicted  of  manslaughter  hail  death  resulted  from  the  shoot- 
tog.  Id. 

ATTEMPT  TO  COMMIT  BURGLARY. 

1.  Attempt  to  commit  HLHtiLARV  — Indictment. —  An  indictment  which 

alleges  that  the  defemlaiU,  "  in  tlie  niglit-time,  feloniously  did  attempt 
to  break  and  enter,  with  intent  tlie  gocMis  and  chattels  in'said  building 
then  and  there  being  found  then  and  there  feloniously  to  steal,  take 
and  carry  away,  and  in  such  attenifit"  did  certain  acts,  but  was  inter- 
cei)ted  ami  prevented  in  the  execution  of  the  ollense,  is  suUicieiit. 
Com,  V.  Shcdd,  01 

2.  Intent  to  steal  may  be  infekueu. —  Where  the  evidence  tends  to  i>r()ve 

that  defendant  broke  and  ()|>ened  certain  windows,  the  jury  nuiy  infiT 
from  the  circumstances,  and  from  the  conduct  and  declarations  of  tiie 
defendant,  that  the  pur^iose  was  t<>  steal  from  the  building.  Id. 


ATTEMPT  TO  ESCAPE  FROM  PRISON. 

1.  Overt  attempt  to  escape  from  prison.— An  indictment  which  shows 

that  the  prisoner,  while  lawfully  conlined  in  the  state  orison  under  a 
judgment  of  a  competent  court  for  tiie  crime  of  burglary,  did  niaki; 
an  overt  attempt  to  escape  tiierefrom;  that  he  "did  unlawfully,  i'orci- 
bly  and  feloniously  break  out  of  tlu;  cell  in  said  prison  in  which  lit; 
Wiis  conlined.  and  out  of  the  building  in  wliicli  said  ct'll  was  and  is,"— 
contains  a  sutticient  statement  nf  fads  to  show  the  commission  of  the 
crime  charged.     Slate  i\  Aittjclo,  02 

2.  Certifieu  copy  of  juiximent.—  It  is  not  necessary  to  stale  in  such  in- 

dictment that  a  certilied  cojiy  of  llie  jnd^^ineiit  ay:niiist  the  jirisoner 
for  the  crime  for  which  he  was  secured  had  Ixicn  handed  to  the  warden 
of  the  pi'isou.  /'/. 

ATTEMI'T  TO  RAPE. 

1.  Information. —  A  criminal  information  under  sections  2S3  ami  31  of 
the  crimes  and  punishments  act,  charging  the  ilet'endant  with  an  at- 
tempt carnally  and  unlawfully  to  know  a  female  child  under  the  age 


INDEX. 


659 


mo  ACTS.— In 
ced  revolver  at 
road  wliich  de- 
rror  to  receive 
it'ss  more  than 
id  tend  to  show 
54 

stified  by  proof 
!  purpose  of  the 


\TiON.—  Intoxi- 
,  in  some  cases, 
.  crime  has  been 
and,  in  a  proso- 
l,  evidence  tliat 
lot  form  or  havi; 
57 

lalicioiisly  shoot- 
that  the  defend- 
iii};lit  have  been 
i  from  the  shoot- 
Id. 


ndictment  which 
mslv  did  attempt 
s  in'saifl  Imiltlin^ 
sly  to  steal,  take 
IH,  but  was  inttr- 
ise,  is  autlirii'iU. 
01 

iicc  tends  to  prove 
.11'  jury  may  infer 
Llaiations  of  tlm 
ildiug.  i'l- 


lient  which  shows 
U!  prison  umlor  a 

liudawfully,  foici- 

frison  in  wliich  lu; 

•I'll  was  and  if,"— 

lommission  of  the 

L)  state  in  such  in- 
l»iiist  tlie  prisoner 
I  lid  to  tlie  warden 
Id. 


■ns  2><;5  and   31  nf 
Indant  witli  an  at- 
lild  under  the  age 


of  ten  years,  may  be  sufRcient,  nlthoup;h  the  word  "rape"  may  not  be 
used  in  the  iid'ormation.    State  V.  Hart,  qq 

2.  "WOUDS  DKFiMNfi  oFFENSR.— Tho  pxact  words  used  in  a  criiniiinl  stat- 
ute <lefiniiig  a  public  otrensu  are  never  re(|Uire(l  to  lie  used  in  ii  crim- 
inal information  charging  such  odense,  but  any  e(|nivalent  wenls  or 
any  words  clearly  ami  intelligibly  setting  forth  the  ollunse,  mv  si'iHl- 
cient.  /(;_ 

8.  VERDitrr -^  Attkmit  to  commit  rape.— In  a  criminal  prosemtion, 
where  the  information  sutMciently  charges  the  defendant  with  at- 
temiiting  to  coimnit  the  offense  (."f  rape  by  seeking  earnnllv  uml  un- 
lawtully  to  know  a  female  diild  under  the  a.i;e  of  ten  years"  but  dees 
not  use  the  word  "  rai.o "  in  charging  the  oil'ense,  and  the  jury  find 
that  the  defendant  was  "guilty  of  an  attemjit  to  commit  a  inpe,  as 
charged,"  the  verdict  is  sulHciehtly  responsive  to  the  information,  and 
is  valid.  £d. 

ATTORNEY  AND  CLIENT. 

See  Privileoed  Communications. 

AUTREFOIS  ACi^UIT- AUTREFOIS  CONVICT. 

1-  Where  a  gi"ist-mill  witli  all  its  contents,  including  the  books  of  account  of 
the  owners  of  the  mill,  are  destroyeil  by  one  ami  the  same  fire,  and 
the  defendant  is  prosecuted  crimiiuilly  for  setting  lire  to  and  burning 
the  mill,  ai"!  on  such  charj:;e  he  is  ai'nuitted,  his  accjuittal  is  a  good  de- 
fense to  a  subseipient  prosecution  lor  setting  lire  to  and  burning  tlie 
books  t)f  acc(nint.     State  v.  t'otijatc,  71 

2.  Acts  made  offi:nsi;s  under  state  and  MUNicirAL  law.—  In  a  case 
where  a  single  act  has  been  made  punishable,  both  by  the  general  law 
of  the  state  ami  l)y  the  ordinances  of  the  town  wherein  it  was  com- 
mitted, it  constitutes  two  distinct  and  several  offenses,  subject  to  pun- 
ishment by  the  [iroper  triiiunals  of  the  state  and  the  uiuniciiiality, 
respectively.    Jluijlus  c.  I'cuplc,  SO 

8.  Effect  of  i'i.ka  of  i'oumi'.r  covs-ktion  AFTKii  DEMruitER  tiikkkto 
SUSTAINKD.—  In  the  absence  of  statute  altering  or  abolishing  the  coiu- 
mon-law  rule,  the  etfi'i't  of  a  plea  hased  iqion  a  former  conviction  is, 
after  its  rejection  by  the  <'ourt  ujion  di'inuirer,  to  [lut  t!ie  difemUnit  in 
tlie  situation  of  one  pleailing  guilty  of  the  olfeiise  charged.  Id. 

BASTARDY. 

1,  Unciiartity  of  the  woman.— Inabastardj  iiroceeding.o^ipecially  when 

the  complainant  claims  to  have  been  ravished,  when.'  tlie  only  (|Uesiion 
is  that  of  i>aternitv.  unchaste  conduct  of  the  woman  with  a  man  otiier 
than  the  tUa'endant  niav  be  shown,  and  especiiilly  so  if  the  cnxuni- 
Btances  do  not  iirecbiie  {lie  possibility  that  the  other  was  the  father  ot 
the  child.    Slate  v.  Kan-er,  **» 

2.  Motive.— Evidence   tending  to  show  the  motive  of  coinpl.ninant  in 

charging  upon  the  tlefendant  the  iiaternity  of  a  child  which  should 
have  been  charged  upon  another  is  admissible.  -'«• 

BILL  OF  EXCEPTIONS. 

1.  Bill  op  exceptions.— The  refusal  of  charges  asked,  wliii.-h  are 
shown  to  have  been  asked  in  writing,  is  not  a  reyeisiljle  error 
where  the  clerk  certifies  that  the  charges  are  on  file  in  Ins  office, 
arc  marked  refKsed  in  the  handwriting  of  the  presnhng  jiu  ge, 
makes  them  a|.art  of  the  record  (Code,  section  WW,  and  enabh'S  tins 
court  to  revise  th.'ir  rerusal,  although  the  hill  <.f  exceptions  .Iocs  not 
State  that  thev  were  asked  in  writiiv;.     Wni.ilnw  r.  I  hr  Stale,  43 


not 

hut. 

.  ami 

,  tlii.-. 


660 


AJIKRICAN  CRIMINAL  REPORTS. 


8.  The  nii.L  of  exckptions  should  specify  plainly  tlio  decision  complained 
of.  An  assign nit'iit  of  error  that  the  entire  charge  is  erroneous  is  ttx) 
general,  if  any  part  of  it  bo  correct.     Anderson  f.  The  Stdfe,  443 

8.  A  liill  of  ex<e|)tions,  when  duly  signed  by  the  judge,  may  be  sufficient, 
even  though  it  has  no  formal  caption,    Dennis  v.  State,  409 

4.  When  the  judge  of  the  superior  court  hiis  approve<l  the  brief  of  evi- 

denci^  and  signed  the  bill  of  exceptions,  he  has  exhausted  his  powers 
in  respei't  to  the  testimony.  Ho  cannot,  by  a  certificate  subseciuently 
luutle,  alter  the  brief  of  eviilence  tm  approved.    Jones  v.  The  Slate, 

5,  Afkidavits  filed  as  evidence  in  the  district  court  must  he  certified  to 

the  suprenje  court  by  a  proper  bill  of  exceptions,  and  be  thus  made  a 
part  of  the  record,  or  they  cannot  be  considered.    Jintdshaw  v.  State, 

499 

BOYCOTTING, 

QUESTrON  OF  PACT  SHOULD  NOT  BE  WITHDRAWN  FROM  JUJ  7,— The  pris- 
oner was  indicted  under  the  Whiteboy  Act  for  posting  -  notice  to  the 
following  effect:  "  G.  T.  is  hereby  declared  boycotted  by  the  com|)e- 
tent  trilninal  for  taking  into  Jiis  employment  Stanley,  the  a.ssassin. 
All  Irisinnen  nnist  shun  him  as  their  deadly  enemy,"  The  indictment 
alleged  that  the  notice  tended  (1)  to  excite  an  uidawful  confederacy; 
(2)  to  excite  a  riot:  (3)  to  induce  persons  to  shun  Cieorge  Tliomii- 
son,  against  the  form  of  the  statute.  The  judge  at  the  trial.  u|)on  the 
requisition  of  the  counsc^l  for  the  crown,  ruled  that  the  notice  on  the 
face  of  it  was  an  unlawful  notice  within  the  meaning  of  the  statute, 
but  reserved  for  the  court  the  point  whether  he  should  have  so  ruleil 
or  should  have  left  the  question  to  the  jury.  The  jury,  in  answer  to 
the  oidy  question  submitted  to  them,  found  that  the  ]irison(!r  had  in 
fact  |M)sted  the  notice  and  the  i)risoner  was  accordingly  convicted. 
Held,  that  the  notice  was  capable  of  l»earing  the  meaning  allegeil  in 
the  indictment;  but  that  the  question  whether  it  did  in  fact  bear  such 
meaning  should  not  liave  been  withdrawn  from  the  jury,  Eeg.  t: 
Coady,  90 


Jl.i 


BURGLARY. 

1.  Under  the  statute  and  at  commcjn  law.—  The  words  in  the  Nevr.<!a 

statute  as  originally  ado|)ted,  relative  to  burglary,  <leclaring  that  tli  si 
crime  may  l)e  comnutted  in  any  "dwelling-house,  or  any  oth>r  ii.'     ~ 
or  building  whatever,"  the  amendment  to  the  original  statute  m,' ■   ;  -: 
it  read  "any  dwelling-house  or  tent,  or  any  other  house  or  b^n'! 
whatever,"  does  not  atl'ect  the  law  of  Nevada  so  far  iis  to  Lvi 
crime  within  the  connnon-law  definition.     State  v.  Dan,  'Jv 

2.  Duplicity  of  indictment  — Burhlauy  and  theft.— It  is  no  objectiofi 

to  an  indictment  that  it  chiU'ges  both  burglary  and  theft,  Init  a  convic- 
tion i^annot  be  had  for  both  olfenses  when  thus  charged  in  tlie  same 
indi<^tment,  nor  can  a  separate  punishnuMit  l>e  a.sscssed  for  each,  nor  .a 
joint  punisliment  assessed  for  both.     Miller  v.  The  Slate,  94 

3.  An  indictment  cuar(JINO  that  the  accused  broke  and  entered,  with 

intent  to  commit  a  felony,  "a  certain  building,  to  wit,  the  main  ex- 
hibition building  of  the  Middle  Florida  Agricultural  and  Meclianical 
Fair  iV.ssociation,"  is  fatally  defective  iu  nt)t  alU^ging  that  the  building 
is  the  property  of  a  corporation  or  iHjrsons.     fells  v.  The  State,         90 

4.  Ownership  of  the  buildino.  —  The'  rule  is  well  settled  that  the  owner- 

ship of  the  building  so  burglariously  entered  must  be  alleged  in  the 
indictment.  Id. 

5.  A  house  which  the  owner  visits  once  or  twice  a  year,  and  in  which,  dur- 

ing his  visits,  he  sleeits  and  eats  for  abuut  a  week,  but  which  at  all 


INDEX. 


001 


n  complained 
onoous  is  t(X) 
ate,  443 

be  sufiicient, 
e,  409 

3  brief  of  evi- 
;ed  his  powers 
!  sul)st'(iut'ntly 
V.  The  St<tte, 
553 

»e  certified  to 

!  thus  iMiide  a, 

ihaw  V.  atdtc, 

499 


Y.— The  prifl- 
,  notice  to  tlie 
by  tlie  coni|)e- 
,  the  a-ssassin. 
rhe  indictment 
I  conl'inleracy; 
t('or«e  Tiiomp- 
trial.  ujton  the 
!  notice  on  tlie 
of  the  statute, 
liave  so  ruled 
•,  in  answer  to 
risoner  had  in 
igly  convicted, 
linjj;  alleged  in 
I  fat^t  bear  such 
jury.    Reg.  n 


i  in  the  Nev,",<la 
iaring  that  th  ii 
my  oth'ir  h.-  ' 
statute  m."     ;  .^ 


ise  or  hi.  n'f 


lis  to 
n, 


Lvi 


•d-.' 


is  no  objectiitu 
t.  but  a  i'onvic- 
;ed  in  the  same 

for  each,  nor  a 
te,  94 

I  entered,  with 
it,  tlic  main  cx- 
and  Mechanical 
hat  the  buiUling 
'he  State,         90 

that  the  owner- 
(  alleged  in  the 
Id. 

id  in  which,  dur- 
but  whicli  at  all 


otlier  times  IS  nnnccni.iod  by  any  ilmsom.  is  imt  n  "  dw<.llin..-l,ouae  " 
the  breaivmg  and  ciitcrin--'  of  wlii.li.  nlu'ii  no  oiu-  is  therein  "with 
intent  to  commit  a  crniic,"  is  "  liuruiarv"' under  section  2T;!R  of  the 
codeofl«8U.     Srutt  V.  n,:  State,  98 

(5.  CURTILAOE,  as  xised  in  the  statute  in  relation  to  bur;:larv(R.S    sec  1297) 
means  an  inclosed  space  inmicdijiteiv  suiTouii.lini;  the  (iwe'liiii--li()U8e 
and  contained  witiun  the  same  inclosure.     The  state  c.  Ihrn.v^        98 

7.  Burglary  of  granauy.— Under  an  indictment  (R.  S.,  sec.  13i)T)  for 

burglary  of  a  granary  in  wliidi  tiiere  were  gvwds  and  vahiahle  things 
and  lai-ceny  tlieiein,  it  is  iimiiaterial  whetiior  or  not   the  "raiiarv  is 
within  the  curtilage  of  the  dwi'Uing-house.  '^  7,i. 

8.  Indictment.— Where  one  is  tried  on  an  indictment  containing  coimts 

for  both  burglary  and  larceny,  and  is  acquitted  of  tlie  buwlaiy  only, 
he  will  be  guilty  of  grand  or  petit  larceny  according  to  tlie  valueof  the 
property  stolen.  /fj_ 

9.  Larcrny  — .Si:ri''iciKXT  AspouTATtox.— The  taking  of  whfiit  from  its 

place  in  agraiiary  and  lilling  it  intosacksand  tyiii.u-  thelatler  is  a  sulli- 
cieiit  asjportation  to  constitute  larceny,  if  doiie'with  the  lelonioiis  pur- 
pose of  stealing  the  wheat.  '  jd 

10.  What  is  a  stKricii:.NT  hkf.akino.— The  opening  of  a  doorwhieli  is  dosed 

and  fasleiu'd  with  a  chain  hooked  over  a  nail  is  asutli<  ieiit  breaking  to 
constitute  Itiiiglary,  if  done  with  the  intent  to  steal  and  carry  away 
property,  and  is  fuilowed  by  an  entry  of  the  building  to  which  the  door 
belonged.  Id. 

11.  Jury  may  assimk.  that  proi'krty  has  a  value.— That  the  use  of 

corn  as  food  lor  horses  and  mules  coiislitiites  vahie  is  a  fart  \\lii<  h  all 
men  are  presumed  to  know:  and  the  court  may  charge  the  .|iuy  that 
they  may  eoiulnde  the  corn  was  vahiaiile  if  the  iirouf  sliows  ihai  it 
was  ust'd  to  feeil  horses  or  mules;  and  circumstantial  [iroof  hiing  suHi- 
cient,  if  strong,  (lonvincing  and  satisfactory,  the  court  may  refuse  to 
instiiKt  that  the  fact  tiiat  the  corn  had  value  must  "be  positively 
proved  by  the  evidence."    Miller  c.  The  State,  105 

13.  BuKAiciNG— TiiuusTixo  ARM  THROUGH  ciiixiv"^.— The  corii  liiiviny,  been 
abstra<led  from  the  crib  by  the  dcreiiilant.  by  thrusting  his  arm 
through  an  opiMiiiig  between  the  chinks,  if  lie  iiunle  or  eiilai';j,e<l  the 
opening  for  the  [au'iiose,  this  would  constitute  a  sulUcient  lireaking  as 
an  element  of  burglary;  but,  if  the  opening  was  neither  made  nor 
enlarged  by  him,  though  he  thrust  in  his  arm  and  took  out  tiie  corn, 
and  niigiit  thereby  be  guilty  of  larceny,  he  would  not  be  guilty  of 
burglary.  Id. 

CARRYING  CONCE.\LED  WEAPONS. 
See  Arrest,  2. 

CHANGE  OF  VENUE. 

Change  op  vexue  — Counter-affidavits.— On  a  motion  by  defend- 
ant in  a.  criminal  action  for  a  change  of  venue,  the  court  may  rcrmit 
the  introduction  of  counter-atHdavits  (ov  the  purpose  of  conleMiiig  the 
grounds  on  which  the  removal  is  jirayed.    Peajtle  v.  Majors,  486 

See  Abduction,  1. 


CONFESSIONS. 


1  CuNFKs-;iox  to  OKricKKS.— To  be  admissible  in  evidence  a  confession 
niu-t  l>e  free  and  vohmtarv.  If  it  is  induced  by  any  promise  or  threats 
(if  (Uie  in  authority  over  the  defendant,  it  is  niconipetent.     <-'"'«-^^ 

i^/'«'CC, 


662 


AMERICAN  CRIMINAL  REPORTS. 


I' 


2.  Defendant  cannot  be  convicted  on  his  extra-judicial  confessions  without 
proof  aliunde,  of  the  corpus  delicti,     Wiuniou'  v.  The  State,  48 

8.  EviDENX'E  —  Admissions  implied  from  silexck.— Tlio  statement  of 
tlie  justice  of  tlie  i)e€aco  before  wlioni  tlie  pri'liitiinary  examination  of 
the  defendant  was  liad,  testifying  as  a  witness  oa  the  trial,  "  that  he 
explained  the  charge  to  Uie  defendant,  and  askcil  him  if  he  desired 
to  make  a  statement ;  that,  after  defendant  made  his  statement,  wit- 
ness told  him  his  own  statement  would  convict  Iiim,  and  defendant 
made  norei)ly," — is  not  a  confession  or  admission  implied  from  silence, 
and  is  not  competent  evidence  against  the  defendant.  Wcacer  v.  The 
State,  a06 

4.  Admissions. —  The  admissions  or  confessions  of  an  aicused  on  trial  for 
a  crime,  made  to  an  individual  out  of  court,  without  jiroof  aliunde 
that  a  crime  lias  been  couuuitted,  will  not  justify  a  conviction.  Siiiilh 
V.  The  State,  COS 

6.  While  confessions  op  ouii.t  should  be  re<'eivcd  with  .;rcat  caution,  and 

will  not,  alo'  ',  justify  a  conviction,  yet  if  tliey  sliouid  lie  corrol)orated 
by  circumstances,  they  would  be  sulHcient  for  that  jiurpose.  ^lH(7tT- 
son  V.  'The  State,  -Uii 

8.  Preliminary  examination  as  to  admissiuility  of  cdnfi'ssk  )Ns.— AVhero 
the  jircliminary  examination  as  to  the  admissii  ility  oC  confessions  was 
conducted  in  the  presence  of  tlie  jury,  and,  iK'inn'  I'ound  comi)eteiit, 
they  were  admitted,  this  was  not  siicli  error  as  Wduld  reijuire  a  new 
trial;  aliVw,  had  the  confessions  been  inadmissible.  Id, 

7.  Confession  of  AtcxsED. —  Under  the  laws  of  Texas,   the  confession 

of  an  accused  is  admissibli'  in  evidence  ag:iinst  iiim,  wlien,  in  connec- 
tion wiili  his  conl'es.-ion,  lie  makes  a  statement  of  lails  and  liicuni- 
stances  found  to  be  true,  and  which  conduce  to  establish  his  guilt. 
Dean  V.  The  State,  477 


CONSPIRACY. 


?^^4  *; 


1.  A  money-lender,  having  a  claim  for  a  small  sum  .against  a  borrower 
for  money  lent  and  high  interest,  I'aused  an  attorney  to  issue  process 
for  a  .sum  double  tlie  amount,  making  up  the  dilferen'-e  b\  items 
charged  on  various  pretenses:  ;ind  after  receiving  p;iy merit  from  a 
third  i)arty  of  the  sum  lent,  so  that  only  a  sum  ol  L'.")  remained  dut.' 
for  interest,  still  prosecuted  the  suit  for  the  whole  .imount  iinlorsed  on 
the  jirocess,  and  then  trieil  to  get  from  the  debtor  a  chinge  on  property 
of  far  greater  value,  and  reprehentcil  to  the  third  |i;nty  that  the  whole 
sum  claimed  was  really  due.  Tlu'  money-lender  :nid  the  iilturney 
being  indicted  for  conspiracy  to  deframl  ,  he  bonower.  and  also  for 
attemjiting  to  obtain  money  from  the  third  jiaity  by  means  ol'  false 
pretenses,  it  was  held  tiiat  there  wa.s  acase  for  the  Jury  tin  bolli  counts; 
and  that  if  tln'  jury  believed  the  two  combined  together  to  enforce  liy 
legal  process  i)ayment  of  smns  they  knew  not  to  i)e  due,  juid  falsely 
represented  tliem  to  he  due,  in  order  to  obtain  payment,  they  were  liable 
to  be  convicted,  as  they  accordingly  were.    lie<i.  r.  Tin/li>ran(l  lioi/ucs. 

lO'J 

3.  Duplicity  — An  indictment  which  cuauoes  til\t  defendants  "did 
wickedly  and  maliciously  cons|iire  together  to  injure  the  person  and 
character  of  one  C  B.,  and  to  assaidt  the  said  ('.  H.  with  the  feioiuous 
intent  to  inflict  uiion  him  a  great  bodily  injiiiy,  hi  violation  of  law. 
and  in  imrsuance of  said  conspiring  together  said  tlefetidants did  in  the 
night-time  feloniously  decoy  said  C  IJ.  away  from  his  home  and  fam- 
ily ani.1  into  the  jiublic  bighway,  .and  di<l  then  and  there  feloniously 
assault,  ill-treat,  and  tar  and  feather  the  said  C.  B.," — is  not  bad  on 
the  ground  of  duidicity.    State  v.  Uniunton,  li;i 


. 


sions  without 
te,  48 

Btatoimmt  of 
ciiniiiialiim  of 
i:il.  ••lliat  he 
il'  1 10  desired 
ateinent,  wit- 
nd  dt'ft'ndant 
from  ailt'iice, 
Vcaver  v.  The 
3G6 

'd  on  trial  for 

I>roof  aliunde 

itiou.    Smith 

863 

t  caution,  and 

'  corrohorattMl 

[)ose.    Aiiilcr- 

4-i;j 

KINS. — Wliero 
tifcssions  was 
id  compoK'nt, 
LHiuire  a  new 
Id. 

]w  confc^ssion 
en,  in  eonuec- 
s  and  eiicuiii- 
ilish  liis  guilt. 
477 


st  a  borrower 

issue  pnicess 

eiire  li\  items 

liiellt  fl'olll  a 
remained  due 
it  inil('rs(Mi  on 
;i'  on  |ir(i|ierty 
liat  (lie  wliule 
(lie  allmiiey 
,  and  also  for 
leans  ot  false 
n  liotli  count.s; 
•  to  enforce  iiy 
le,  and  falsely 
wy  were  lialile 
ifdiid  liiii/iK's, 
lOS) 

EN  HANTS   "did 

llie  person  and 
Il  tlie  felonious 
lation  of  law; 
lantsdid  in  tln' 
lome  and  fam- 
I're  feloniously 
-is  nt)t  bad  on 


INDEX. 


663 


'•   'SS?^A?iSS,rfor""'''   Cr.RGINO   X  CORRUPT  CONKED- 

Wled«e  of    the  dofendS;  dLJlSlS^*"^  Z^^^^ii^,!^ 

123 

4.  Same -Where  the  act  to  b<>  accomplished  by  a  conspiracy  is  illeiral 

eLS.  to  inedV  i^'";f  "•'  rf''\''^   lalso^.retensritV'.lJ'.S: 
essary  to  si)ecil>  m   the  mdietiiient  t he  means  by  which  it  wik  in 
tended  to  be  accomplisi.e.l.     Thomas  v.  The  PeoplI,  127 

6.  Same- Count -lNnicTMK.VT.- So  a  count  hi  an  indictment  tliat  tlie 
de  endants.  on.  ef..  at.  etc..  feloniously,  fraudulently  an  1    L  eSu  ? 

h  tent'Z'n'.in'r  l''^^'"'^:.  l""^'""?"'  ''''^'  ^he  fraudulent  and  n.a  L'S 
o,i    w  .  '    ^     '';■•  '*''V"!'i'i^'y'  ^vmnKfully  and  wickedly,  to  obtain 

one  hoise  ol  the  value  ot  .t;..,.  and  describing  other  pro..  Ttv  in  like 
manner  sou.d.t  .0  be  ol„;,i„,„|.  and  .ivinjr  its  falncthe  ,,e™  J.!  ds 
ad  ,.r„,,ert.v  ol  W  C..  from  the  said  K.  C,  by  false  pretenses,  and  to 
sibsLillhl,;;'':;;;;;;:  "^'•'  ^"^  '■'''  ^-  ^^  ^^  ^'-  -me/contrary;  etc.  J. 

6.  Faf-sk  ruKTKNSiw—Misi.KMKANoi;.— a  conspiracy  to  obtain  the  goods 

ol  another  by  lalse  iireteiises  beiim-oiily  a  misdemeanor,  l»oth  at  com- 
nu.ii  law  and  by  our  statute,  thou,-,di  iiuiiishable  bv  conliiieuieiit  in  the 
lieiiitentiary,  an  mdictiiieiit  charKiiiK  such  oireiisein  two  counts,  with 
a  tlurd  charnuin-  the  obtaminj;-  of  the  same  goods  bv  false  iireteuses, 
will  not  be  obnoxious  to  the  objection  of  a  misjoinder  of  counts.    Id. 

7.  Samk  — Conviction.—  Where  several  jiersons  conspire  together  to  obtain 

the  goods  of  another  by  false  pretenses,  an. I  oiitain  sucl'i  goods  ui)on  the 
false  assiu-aiK'c  tli.at  one  of  lli.'in  iias  a  dear  title  to  ct'riaiii  lots  which 
are  given  m  exchange,  the  fad  tiiat  the  owner  of  t lie  goods  was  i  11- 
diieed.  by  his  conlideiice  in  the  false  as.-,urances.  to  forego  an  examina- 
tion of  the  records,  wliidi  would  have  shown  the  defendants  had  no 
good  title  to  convey,  and  was  negligent  in  relying  upon  the  representa- 
tions made,  will  n(Jt  prevent  a  conviction  of  the  defendants  so  consi.ir- 
iiig  together. 


8. 


Id. 

Motion  to  qi'ash.— A  general  motion  to  ipi.-ish  an  indictment  contain- 
ing several  counts  sliould  be  overruled  if  any  count  tliereof  is  good.  Id. 

One  (iooi)  coLNT  sui'I'oiits  verdict.  — A  ver<lict  tin<ling  the  defendants 
guilty  of  a  conspirat'y  to  obtain  goods  by  falsi ?  pretenses,  under  an  in- 
dictment containing  two  counts  for  such  olfense,  will  be  sustained  if 


either  (jf  the  counts  is  good. 


Id. 


10.  Same  —  VniiiucT.—  Where  an  indictment  contains  three  counts,  two  of 

them  charguig  a  conspiracy  to  obtain  goods  by  false  pretenses,  and  the 
third  for  obtaining  goods  by  false  pretenses,  a  vcrtlict  liiiding  the  de- 
feiKlaids  guilty  of  the  coiisiiiraoy  tmibtain  tlie  goods  by  false  pretenses, 
saying  .oothing  as  to  the  third  count,  is  eijuivaleiit  toa  linding  of  not 
guilty  as  to  that  count.  Id. 

11.  Punishment  oe  misdemeanor.— It  is  competent  for  the  legislature  to 

jirovide  tliata  niisdeineanor  may  bo  punished  by  coiilinemeiit  in  the 
Itenitentiary.  Id. 

12.  All  comniunications  between  a  solicitor  and  his  client  are  not  iirivileged 

from  disdoNiire.  but  cuily  those  (lassing  between  them  in  proiessional 
coiitldencc  and  in  the  legitimate  course  of  professional  employment  of 
the  solicitor.  Coinmuiiieations  made  to  a  solicitor  by  his  client  before 
the  comniissioii  of  a  crime,  for  the  purjiose  of  being  guided  or  helped 
in  the  commission  of  it,  are  not  privik'ged  from  disclosure.  The  Queen 
V,  L'u.c  (iiid  lidilluit,  140 


(164 


AMERICAN  CRIMINAL  REPORTS. 


1&.  C  anfl  R.  wore  partners  unrlor  a  deed  of  pnrtnorsliip.  M.  brought  an 
action  against  R.  &  Co.,  and  obtained  .judgment  therein,  ami  issued 
execution  against  the  giXxlB  of  R.  The  g<K)ds  seized  in  execution  were 
then  claimed  by  C.  as  liis  absolute  property,  under  a  l)ill  of  sale  executed 
in  Ilia  favor  by  R.  at  a  date  subsequent  to  the  altove-nientioned  judg- 
ment. An  interpleader  issue  was  ordered  to  deternnne  the  validity  of 
the  bill  of  sale,  and  u|ion  the  trial  of  this  issue  the  partnership  deed 
was  produced  on  C.'s  behalf,  bearinj;  an  indorsement  purporting;  to  be 
a  m(.'niorandum  of  dissolution  of  the  said  ])artncrship,  prior  to  the 
commencement  of  the  action  by  M.  Siibse(|uently  ('.  and  R.  were 
tried  and  coTivicted  up(m  a  charge  of  conspiring  to  defraud  M.,  and 
upon  that  trial  the  case  for  the  prosecution  was,  that  the  liill  of  sale  wiia 
fraudulent,  tiiat  the  partnership  belwcen  U.  and  C.  was  in  truth  sul>- 
sistins  when  it  was  Kiven,  and  that  the  memoraiKlnm  of  dissolution 
indorsed  on  the  deed  was  jtut  then*  afttir  M.  had  ol)taine<l  judj^inent, 
and  fraudulently  antedated,  the  whole  transaction  beins;,  it  was 
alle<.;;ed,  a  fraud  intended  to  cheat  M.  of  the  fruits  of  his  execution. 
Upon  the  trial  a  solicitor  was  called  on  behalf  of  the  prosecnriou  to 
prove  that,  after  JI.  had  oblaineil  the  juil;j!;mciit,  (.'.  and  R.  {oj^dhei  con- 
8ult('(l  him  a-s  to  how  thi'y  coulil  defeat  M.'s  J\iii;;ment.  and  as  to 
whetlier  a  bill  of  sale  couhi  legally  be  I'xecutcd  by  J{.  in  la\t)r  of  C.  so 
as  to  defeat  such  Ju<l^ment.  and  that  no  snj;K"'f<ti()ii  was  tlien  made  of 
any  dissolution  of  partnership  haviii};  taken  place.  The  reception  of 
this  evidence  beinj;  objected  to,  on  tlie  j^round  tiiat  the  coiniiiunica- 
tion  was  one  between  solicitor  ami  client,  and  privile.nod,  the  evidence 
was  re(!eived,  but  the  (piestion  of  whetlier  it  was  propi-rly  received 
■was  reserved  for  this  court.  //(/(/,  by  the  court,  that  the  evidence  was 
projierly  received.  Id, 

14.  CONSHKATORS    JOIXTt.Y    I.IAHI.K    FOR    RKSUI,T    OF    UNLAWFUL  COMBINA- 

TION.—  When  persons  combin»>  to  <lo  an  unlawful  tiling;',  if  the  act  of 
one  proceedinf;  accordinj;  to  the  conunoa  jilan  ends  in  a  <Timinal  re- 
sult, though  not  the  particular  result  intended,  all  ai"o  liable.  Carr  v. 
State,  438 

15.  Declarations  of  conspirators. —  All  matters  talkecl  of  in  conversa- 

tions between  i)arties  conspiring  to  comnnt  a  crinu!  are  admissilile  if 
spoken  of  at  tlie  time  the  main  subject  of  the  conspiracy  n-as  talked 
of.  But  independent  of  this,  if  this  matter  was  stricken  out.  and  the 
jury  instructed  not  to  consid(!r  it,  this,  of  itself,  would  be  siitlieient  to 
cure  any  error  made  by  the  admission  of  it.     I'c.itple  v.  Alajurs,        486 


CONSTITUTIONAL  LAAV. 


m 


f^i 


1   I 

m    I 


1.  The  act  of  the  legislature  of  Oregon  jn'oviding  that  the  sheriff  and  clerk 

sh.'ill  draw  from  the  body  of  juntrs  a  graml  jury  .several  days  prior  to 
the  term  of  court  is  in  couHict  with  section  18  of  article  7  of  the  con- 
stitution, and  void,    State  v,  Laivrence,  163 

2.  An  indictment  found  by  a  grand  jury  organi/ed  ujider  an  unconstitu- 

tional law  should  be  qua.shed,  and  a  judgment  of  conviction  founded 
thereon  reversed.  Id. 

8.  United  States  constitution. — The  provisions  of  the  federal  constitu- 
tion do  not  apply  to  criminal  i)rosecntions  under  state  laws,  excei)t 
when  the  states  are  named.    State  r.  liosirell,  166 

4.  Pro.secution  by  inform.vtion. —  The  fourteenth  amendment  to  the 
federal  constitution  apjilies  to  the  states;  but,  where  the  constitution 
of  a  state  provides  for  iiie  prosecution  of  felonies  by  information,  a, 
prosecution  by  information  is  not  in  violation  of  the  i)rovisions  of  that 
amendment.  Id. 

6.  When  GiiAXi>  jury  fail  to  iNnicT,  — An  infornuition  cannot  i>roperly 
be  tiled  against  a  defendant  so  as  to  coMi[)el  him  to  go  to  trial  at  atei'ra 


m 


INDFX 


665 


of  court  to  wliich  lie  was  rocoKnizf-d  to  apiioar,  aftt-r  tlio  ^rand  jury 
had  Ihc'Ii  discliaiHcd  witlmut  fiiidiiij,'  an  indictna-ni  a-aiii.srhiin.    Id. 

6.  Statutes  should  be  construed  as  pa.-^Hof  one  groat  and  uniform  system 

of  law.  j^_ 

7.  WARUANT  f)l'  AKKKST  ON  AFl'IDAVIT  —  Fl IX OF  RICIHTS.  —  Section  15 of  the 

bill  of  riKlits,  in  tlic  oonstitutiorj  ci  Kansas,  dwlans  that  no  war- 
rant shall  be  issued  to  seize  any  j.erson  except  on  pr(>l'al)le  cause,  sni> 
ported  by  oath  or  atHrniiition.  llenee  a  complaint  or  inlormation  tiled 
in  the  district  court,  clwuj^ing  a  defi'ndaiit  with  a  niisdeineaiictr,  and 
veritied  on  nothinj,'  but  hearsay  and  belief,  is  not  siilliiietii  li.aiithorizf 
the  issuance  of  a  warrant  for  the  arrest  of  the  jterson  tinniii  char^icd, 
when  neither  a  preliminary  examination  nor  a  waiver  of  tiie  right  to 
such  examination  has  lieen  had.     State  v.  Ulinsov,  1T2 

8.  Right  to  a  itbijc  tkial  uy  an  imi-ahtiai,  .hrv.— Under  section  13 

of  the  bill  of  rights  in  the  constitution  of  Indiana,  in  all  criminal 
prosecntionstlu^  accusiid  has  the  right  to  a  public  trial  liy  an  imiiartial 
jury,  and  of  this  right  he  cannot  be  de|)rived,  nor  caii  he  waive  the 
same  >inlcss  such  waiver  is  expressly  authorized  by  stalnle.  Wurtnir 
V.  The  Stiitc,  ITS 

9.  On  ri.i'.A  ov  (it;ii;rv  ok  not  ouii.ty,  juky  skist  assks><  I'tMsuMiAT.— 

Under  section  1S!>|,  \{.  S.  bSSl,  the  defendant  in  a  capital  ca>c  must  be 
tried  by  a  jury  ;  and  upon  conviction  tif  a  capital  olfensc.  upon  bis  [ilea 
either  of  guilty  or  not  gnilty,  it  is  in  the  dis<n'tion  of  the  jury  alone, 
under  the  statute,  to  assess  his  punishment,  either  that  he  siilfer  death 
or  be  iinpi'isoned  in  the  slate  ]prison  d\u'ing  life.  Upon  c<inviclion  for 
such  olfensc  the  court  is  not  authorized  by  statute  to  assess  the  |iunish- 
ment  without  the  intervention  of  a  jury;  and  this  is  so  even  where  the 
defendant  interposes  a  plea  of  guilty.  ,  Id. 

10.  Section  '^\  of  article  1  of  the  constitution  (Ansslssii)pi)  declares  that  "The 
legislature,  in  cases  of  petit  larceny,  assault,  assault  a!id  baltery.  alVray. 
riot,  unlawful  assembly,  drunkei\ness,  vagrancy,  and  other  misile- 
meanors  of  like  character,  may  dispense  with  an  in(|uesi  ,i|  a  ^rand 
iiiry  and  may  authorize  prosecutions  before  justices  of  the  peace."' 
Under  this  jirovision  a  statute  authorizing  ])rosecntions  before  justices 
of  the  iieace  b>r  violations  of  a  law  prohibiting  the  sale  of  intoxicating 
liquors  is  valid,  notwithstanding  it  provides  for  atrial  "  without  the 
hiterveiition  of  a  jury:"  and  the  language  <iuoted  fmni  the  constitu- 
tion seems  to  contemplate  a  trial  by  a  justice  of  the  peace  rather  than 
by  a  Jury.     K.v  pnvte  W'uvtcn,  181 


CONSTRUCTION  OF  PENAL  STATUTE. 

Statu  n:s  should  be  construed  as  parts  of  one  great  and  uniform  system 
of  hiw.     .s7(//<'  c.  Bonurlt,  ItJ^ 

Penal  statutes  nnist  hv.  strictly  construed.    State  v.  ClKqmiin,  190 

Where  a  person  is  lawfully  confined  in  a  city  prison  for  the  violation  f>f 
•A  citv  ordinance,  under'a  jmlgment  ren<lered  by  a  iiolice  judge,  lie 
cann()t  l»e  convicted  for  breaking  such  prison  ami  escaping  therefrom, 
under  sections  Httor  183  of  the  act  regulating  crimes  and  i)unishnients. 

Id. 

CONTEMPT. 

1.  PUNISHMI5NT  FOR  DISOBEDIENCK  TO  SUBP'T-:NA.— To  justitv  piuiishmetit 
by  indictinont  for  disobedience  to  sul)p(ena.  as  in  the  case  of  a  crinunal 
contem|)t.  tln>  mandate,  i.roeess  or  onler  .lisobeyed  nuist  have  been 
hiwfullv  issued  bv  a  court  of  record  duly  or-anize.!:  and  this  does  not 
mclude'a  suiip(ena  issued  bv  a  district  attorney  m  a  crmunal  case,  tor 
this  is  punish.able.  as  in  a  civil  action,  under  another  statute  than  that 
specifving  the   i.i^naUv   for  crinunal    contempt.      Such    mdictment, 


66G 


A»[EUICAN  CRIMINAL  REPORTS. 


s 


\  9 


i 


'i-i'is 


LiAi  ifSj 


founded  on  a  rt'fuHiil  to  appear  on  a  subpoena  of  a  district  attorney,  Is 
insutlicioiit  to  Huwtain  a  verdict  of  guilty,  or  a  sentence  after  conviction 
or  alter  a  plea  of  guilty,     tilivru'in  v,  I'euple,  193 

PCNisiiMKNT  iitii  CIVIL  cosTKMiT,— Tlio  propor  Hiodo  of  punishing  a 
piTKon  lor  retiisitig  to  oliey  the  subpieiia  of  a  district  attorney  is  by  aii 
application  to  llio  court,  ui)on  notice  to  the  party.  Id. 


CONTINUANCE. 

1.  Sukprise  —  C«)NTINUAN'ce  —  Dihchi;tiun.— A  motion  to  continue  a  case 
on  ai'cduiit  of  surprise  is  adilresr-cd  to  the  discretion  of  the  court,  and 
its  rulings  are  not  revisable  on  a  bill  of  exci'ptions.    Stnlc  v.  Smjlf,  -iWl 

3.  Sound  discuktion  of  tiik  coL'UT.— In  the  sixth  subdivision  of  article 

500,  Code  ol'  I'rocedurc,  it  is  provided  that  the  truth  of  the  allega- 
tions made  in  every  application  by  a  defendant  tor  a  continuance,  and 
the  merit  iind  sulliiicncy  ol'  the  ground  relied  upon,  are  a(ldrt's>ed  to 
the  "sound  discn'lion  of  (lie  court."  Tills  iniplirs  lliat  the  .iction 
of  the  I'durt  upon  the  application,  even  when  it  is  tirst  ja-est-nted, 
Hhould  not  be  an  arbitrary  detei'iiiination  of  its  merits  an<l  suMicieney 
by  the  trial  court,  but  the  result  of  a  sound  tliscretion.  JIurrin  v.  The 
State,  a57 

8.  Samk— MATKiaAMTV  o|-  Tr.sT!MoNv— ('iiMii.ATivi:.  — In  certain  cases  the 
(tumulalive  cbaraclcr  ol'  the  testimony  docs  not  impair  its  niMtcriality, 
and  in  this  case  that  of  the  aliM-iit  witiic-scs  \v4Mild  not  have  been 
merely  <'umnlative,  inasnin<-li  as  it  appears  that  their  opportunities  for 
full  kno\vliM|M;(.  (,f  the  facts  were  belter  than  those  of  the  witnesses  at 
the  trial;  and,  a.i  the  |irc>liable  trtrtli  of  the  absent  testimony  is  also  ap- 
jiariint,  the  trial  coint  erred  in  refusing  a.  new  trial  in  the  case.  Id. 

4.  Thk  suowiNo  IN  siircour  ok  a  motion  i-ou  (ONriNiAM'K,  on  the  ground 

of  the  absence  of  witnesses,  sliinild  be  full,  satisfactory  and  direct  iis 
to  the  material  alleL^ations  necessary  bir  that  purpose:  it  should  a|ipear 
that  there  is  no  other  witness  |)reseiit  by  whom  tin?  <Iefeiidant  can  sat- 
isfactorily |)rove  the  same  facts,  anil  that  such  facts  would  be  evidence 
in  the  case,      ^[ndcrxoti  r.  Tliv  Slate.  448 

6.  Discretion  OF  Tin:  COL'UT.— Continuances  of  a  criminal  ca.se,  after  the 
first  term,  rest  in  the  simnd  iliscretion  of  the  court;  and  even  at  the 
first  term,  all  discretion  is  not  denied  to  the  judge.  Id. 


conrus  delicti. 

Admissions. —  The  admissions  or  confessiims  of  an  accused  on  trial  for 
a  crime,  made  to  an  individual  out  of  cmirt.  without  proof  uliiiiiile 
that  a  crime  has  been  I'ommilled,  will  no|  jiisijfv  a  conviction.  !^iiiith 
V.  The  State,  '         '  ««;{ 

See  Trariss  c.  The  Com.,  'S>{>,  as  to  instructions  bearing  ui)on  the  corpus 
delicti. 

See  Arson,  3.    Confessions,  2.    Court  and  Jury,  1. 


COSTS. 

Sentencp.  to  hard  LABOR  FOR  COSTS. —  A  sentence  to  hard  la]>or  for 
non-i)ayment  of  costs,  in  a  crinunal  prosi'cution  for  a  misdemeanor, 
cannot  ex''ee<l  eight  months,  nor  fifteen  months  in  a  case  of  felony 
(Sess.  Acts  !SfS()-Sl,  |),  ;}7);  but  a  sentence  beyond  this  limit,  being  a 
clerical  error,  will  be  cctrrected  bv  this  com't.  if  the  record  contains  no 


other  error.    Miller  v.  The  State, 


1U5 


^s 


ittorney,  la 

conviction 

193 

unishing  a 

oy  ia  by  iiii 

Id. 


inup  a  case 

court,  nnd 

'.  A'('(//(',  M'i 

II  of  iiitklo 
till)  iillt'H'i- 
iiiiuu-(>,  ami 
iildrt'SM'il  to 
tlic  ;iction 
prcscllKMl, 
HUtluit'lKV 

.irris  c.  The 

in  cases  tlii' 
iniiti'i-iiility. 

luiVC     1)0CI1 

rtiiiiitics  lor 
witnesses  at 
V  is  also  ap- 
•ase.  /(/. 

1(1  direct  iw 
lould  iippear 
ant  can  sat- 
in; evidoncii 
44:1 

so,  after  tliu 

even  at  tlio 

Id. 


on  trial  lor 
•(Mif  (tliiniilf 
ion.    Smith 

the  cor2iiis 


INDEX. 


COUNHEL. 


667 


1(1  labor  for 
isdemeanor, 
se  of  felony 
nit.  iM'injj;  a 
I  ('(jntaiiis  no 
1U5 


1.  MissTATKMKNTS  OF  TTir;  F.vn)i:N(  v.  —  Orikctions  to.— WImmv  it  is  nll(>Ked 

that  an  attornt>y,  in  tlie  argument  of  a  eauso  on  trial  to  a  jury,  made 
niisstateinents  of  the  evidence,  and  went  outsidt!  of  the  iirord  in  his 
Btntenients  of  the  facts  proved  on  the  trial,  the  atteiitim  of  the  court 
Blioiild  lie  calletl  to  the  lan^iiia^'o  and  conduct  of  the  atlonii'V  bv  the 
proper  objection,  and  a  ruling  had  thereon  by  the  court.  If  the  (ibjee- 
tion  is  overruled  and  an  e.\cc|itioii  taken,  the  (luestion  ntjiy  he  reviewed 
in  the  supreme  court  upon  the  lan;;uaj,'e,  objection,  rulin"j,%  and  excep- 
tion bein.;,'  made  a  part  of  the  record  by  tlio  proper  bill  ot  exceptions, 
but  not  otherwise.     lirtnlslifiir  r.  Sttite,  4!t!» 

2.  Mlscosnt;cT  or  coi-nsix.— For  misconduct  of  counsel  for  tho  state  in 

argument  held  not  snlliciciit  to  Justify  the  reversal  of  the  Jud;<inent, 
when  considered  in  conneetioii  with  iiiterruptive  deniid-  of  ('on-isel  for 
the  accused  iuid  the  proni|it  disapproval  of  the  court,  see  ojiinion. 
Ejips  V.  Stdit;  417 

8,  iMi'UopKit  itKMAUKs  uF  cuVNSKU— Tile  prosecutinj,' attorney,  in  his  open- 
ing; statement,  called  the  defendant  "a  dirty  doi,'."  Ilihl.  reprehen- 
sible, but  not  snl'iicieiit  to  justify  a  reversal.'  AndcrHdii  r,  Stulv,    (iOl 

4.  Lmi'I!()|'KI{  i;ttki{.v\(i:s  ok  pkoskcitok.— The  utteranc(>s  of  the  prose- 

cutiiiic  attorney  in  his  closiii'^  ar;;umeiit  before  the  jury,  iuipuliii;;- to 
the  defendant  ^'raver crimes  than  that  for  which  she  is  li 'in.;  tried,  and 
as  to  which  he  had  not  liein  |jei-mitted  hy  the  court  to  oll'ir  ie-.timony, 
will,  if  not  restrained  b\  the  court,  invalidate  the  convi'  lion.  Smllh 
V.  The  J'roj,!. .  '  (515 

5.  Eui?OR  NOT  cfiiKO.— The  fact  that  the  court  w;\rned  (lie  jury  against 

improper  utterances  which  would  prolialily  be  made  by  tlic  pro-ci  utiivj: 
attorney  in  his  ar^^uinent  will  not  eiu'c  an  error  committed  liy  i  ii(>court 
in  not  restrainiiij;  improper  utterances  niadi?  by  that  (itli<'er  during'  his 
argument.  1<1. 

6.  Coiuisel  may  be  employed  by  the  ]]i'osecntin;f  witness  to  assist  the  pros- 

ecutor.   State  V.  Moiitijitiiii I'll,  TA:  llnKtulidU'  r.  State,  499 

COURT  AND  JURY. 

1.  TiiE  coriiT  nr.nnios  ox  Tiir.  ruMiMnn^NCY,  tiii'.  .uiiy  on  tiiic  sitfi- 

C'lKNC'Y,  oi''  i;vii)|;nci;. —  The  sulllciency  of  the  jiroof  of  iIk'  e<ii'i)iis 
delieli  is  not  a  (|Uestion  of  law  for  the  decision  of  the  comt.  but  a 
qui^stion  of  fact  for  the  jmy  to  (h'cide;  and  while  the  comt  must  de- 
cide, ill  the  lirst  instance,  whether  tlieevidence  addiiceu  i^  iiiiiiiii  f((eie 
Hullicient  to  ,i;()  to  the  Jury,  the  jury  are  not  bound  to  hold  it  .-iiilUcieiit 
because  the  court  lias  iidiiiitted  it.     U'iiisloie  i:  TlicStut'-,  4^ 

2.  Duty  oi'-  tkiai.  cotUTS  in  admitting  i:vii)i;n(K.— The  circuit  courts 

should,  in  the  trial  of  criminal  causes,  admit  all  testimony  oll'eied.  of 
which  they  doubt  the  competency.     Can- v.  State,  438 

8.  RlOllT  OV  .itKY  TO  Dt'-.TI^RMINF.  LAW.— See  o](iiiion  for  instructions  on 
tills  point.    Andei-sun  v.  St(de,  ^^1 

CRUELTY  TO  ANIMALS. 

1.  DrPLiriTY.— A  count  in  a  com|)laint  is  not  bad  for  duplicity  iK'cause 

it  alle^'osthat  the  defendant  "did  cruelly  torment,  tortuiv.  maim,  beat 
and  wound  his  horse,  and  deprive  said  horse  of  necessaiy  sustenance; 
as  tli(>  dilfercnt  descriptions  of  the  otfeiise  are  not  rei.u,i;n:iiil.    ^''"''' V. 
llaiikell,  -^^ 

2.  S\MK  — iNsrFFiriRNCY  OF  iNDirTMi^NT.— The  words  in  the  same  count, 

"and  the  said  defendant  did  then  and  there  fail  to  [irovide  said  bursa 


I 


668 


AMERICAN  CRIMINAL  REPORTS. 


with  proper  food,  drink  and  slicltor,"  imply  another  and  distinct  of- 
fense; but  iis  it  is  not  alleged  that  the  dofondant  at  the  time  had  "  the 
care  aud  custody  "  of  the  animal,  they  may  be  rejected  as  surplusage. 

Id. 

DECLARATIONS. 

See  Confessions. 


EMBEZZLEMENT. 

Town  trrasprer.— The  fact  tliat  a  town  treasurer  paid  oortain  town 
notes  {i;ivon  by  him  while  in  oilici^  out  of  his  j)riv:ite  Ciinds,  after  he 
ceaseii  to  be  treasurer,  does  not  of  itself  constitute  sutlieieiit  j>roof  to 
warrant  a  conviction  <m  an  indictment  for  cinbczziciiicnt.  Ti>  consti- 
tute the  crime  of  embezzlement  it  is  essential  that  the  owner  should 
be  deprived  of  the  property  embezzled  i)y  an  adverse  holding  or  use. 
Com.  i:  Este,  203 

SUFFIC'IKNCY  OP  INmcTMKXT.— vVii  iodicl ineut  chiirscd  that  the  defend- 
ant, iuMnp;  secretary  of  a  •••Ttnin  socji-ty,  received  the  sum  of  iJ'JO, 
wliicli  he  took  jiossession  of  anil  held  for  the  use  of  said  society  as 
such  secretary,  and  tliat  lu'  did  frau<lMleiitly  and  feloniously  steal,  take 
and  carry  away,  and  convert  to  bis  own  use,  tbe  sai<l  sum  of  money, 
wbereiyy  lie  committed  a  breach  of  trust  witb  frandulent  intent,  and 
by  force  of  the  statute  in  sueli  case  made  and  proviileil  was  ;j;nilty  of 
tlie  crime  of  ;;rand  larceny,  contiarv  to  tbe  form.  t'tc.  Jlrlil.  tbiit  the 
indictment  was  sufllcierit  nmler  tbe  statute  tli.it  ilccl.ires  breach  of 

2(M 

but 

liich 
llie 


trust  witb  frauthdcnt  intent  to  be  larceny.     .S7(//('  r.  linlhr, 

8.  St.vtitoky  LAIW'KNY.— This  statute  dill  not  create  any  new  nlfense. 
only  extemled  tbe  crime  of  larceny  at  ioiu'mom  law  to  cjiscs  in  wl 
tbe  pro|>erty  stolen  was  in  tin-  le.;al  possession  of  the  accused  at 
time  of  its  conversion. 


4.  EsTOPi'i'.t..  —  One  who  has  acted  as  secri'tary  of  a  society  cannot  deny 
the  existence  of  such  society  when  prosecuted  for  a  fraudulent  breach 


of  his  trust. 


Id. 


6.  Fit.Vl  Dtl^KNT  INTKNT  KSSKNTI  .VI,.— To  Const  It  utc   breach  of  trust  a  t'rim- 

inal  olfcnse.  tliere  must  Ik;  a  fiauilulent  intent.  Tlierefore  the  circuit 
iu<l>;e  erred  in  reru.-.ii);.;  to  cbarj;c  tbe  jury,  when  so  r.'i|Ue>li(l.  "that 
the  mere  iact  of  not  paying  over  the  money  by  the  (k'lt  mlaiil  was  not 
sulticient  evidence  in  itself  to  convict  him  of  a  breach  of  trust  with 
fraudulent  intent."  Jd. 

8.  An  indict.urnt  for  kmbkzzlkmknt.  cbarginp:  that  defendant  was  the 
"  agent  and  employee  "  of  a  certain  person  "for  the  purpose  of  col- 
lectiuy;  money  on  a  certain  lottery  ticket."  and  then  properly  changing 
the  embezzlement  of  such  money,  is  sulHiient.  on  motion  to  ipiash 
for  not  ilescrjbing  the  lottery  ticki'l  witb  sullii'ient  certaintv.  W'ond- 
ard  V.  State,  '  '  2\Q 

7.  MONKY  COLLECTED  ON  LOTTKHY  TICKF.T.— It  is  no  defense  to  a  prosecu- 

tion for  embezzlement  of  money  collected  by  ati  agent  that  it  w;is  col- 
lected on  a  lottery  ticket,  contrary  to  the  laws  of  Ibis  slate.  Id, 

ESTOPPEL. 
See  Embezzlement,  t. 


EVIDENCE. 

1.  EviDENOF,  OF  ini-;NTiTY— . Ri;s  oksm:.  — There  being  snfllcient  evidence 
to  identify  defendant  as  the  person  who  broke  into  the  witness'  house, 
the  admission  of  what  was  said  liy  defend.ant  to  iirocure  an  entrance 
was  proiier  as  p.art  of  the  rca  iji'sld'.     Stair  r.  luiipi'i;  594 


INDEX. 


669 


11 

t 

t  .l.'iiy 

lircach 

Id. 

; 

1  (  rim- 

i. 

ciniiit 
••that 

was  imt 

11 

-,t  witli 
Id. 

\\ 

as  tbo 

of   Clll- 

•1 

arn-m,u; 

1) 

ijiiasli 
:J10 

2.  Knowledge  op  defendant  op  mon'ey  beino  kept  in  house  bub- 
OLAmZEn.— On  a  trial  for  burglary,  evidoiico  tliat  the  (Iff.iidaiit  knew 
that  there  was  money  in  the  house  broken  into  is  admissilile,  and  may 
be  considere.1  by  the  jury  in  determining  wlietiier  he  was  the  person 
who  broke  and  entered  it.  m 

8.  Proof  of  other  crime.— When  the  fact  is  proven  that  the  particular 
crime  charged  in  tlio  indictment  was  rommitted  by  some  person,  evi- 
dence whicli  tends  to  identify  the  accused  as  tlie  person  who  commit- 
ted it  is  relevant  to  tiie  issue,  and  is  aihnissible,  even  thou^;h  it  tends 
also  to  prove  tlie  commission  of  a  distinct  crime  from  tiiat  charged  in 
the  indictment,  or  a  different  motive  from  that  alleged.  Id. 

4.  Testimony  of  i>f.fkndam. -As  to  the  testimony  of  the  defendant  in  a 
trial  for  murder,  it  is  not  error  for  the  court  in  its  instructiuns  to  re- 
mind the  jury  of  the  defendant's  interest  in  the  result  fif  the  trial, 
provided  it  refrains  from  intimating  or  suggesting  the  degi'ee  of  weight 
to  be  given  to  sucli  interest.    Minich  v.  People,  20 

6.  Corkouou.vtion  of  testimony  of  an  accomplice.—  The  testimony  of 
an  accomplice,  corroborated  by  evidence  of  an  a(lniission  made  by" the 
defendant  connecting  him  with  the  killing,  is  sufficient  to  sustain  a 
conviction  of  murder;  and  tlie  testimony  of  a  constable,  to  whom  the 
witness,  who  testili('d  to  the  admission,  had  rei)eated  the  convt^rsation, 
is  admissil)le  to  tix  the  date  of  such  admission.  People  v.  Zimmer- 
man, 34 

6.  Evidence  to  show  motive.— For  the  purpose  of  showing  a  motive  it 

Ls  competent  in  a  prosecution  for  arson  to  prove  an  overvaluation  of  in- 
sured property  destroyed  by  tire,  and  a  demand  of  the  insurer  for  such 
value,    atitz  V.  Htnte,  48 

7.  Explanation  of  testimony  offkred  to  show  motive.— Where  evi- 

dence tending  to  show  an  overvaluation  of  property  is  given,  and  tliere 
is  also  evidence  which  tends  to  show  that  it  wiis  made  by  mistake  of 
fact  or  error  of  jmlgnieiit,  the  accused  is  entitled  to  an  instruction 
that,  if  the  overvaluation  arose  from  sm'h  cause,  it  is  noiito  be  taken 
as  evidence  of  a  criminal  motive  or  intent.  Id, 

8.  Motive. —  Evidence  tending  to  show  the  motive  of  conijilainant  in 

charging  upon  the  defendant  the  jiaternity  of  a  child  which  should 
hiive  been  charged  upon  another  is  admissible,    iitnte  v.  Kanrr,       88 

9.  Evidence  of  owxiiistiip  of  propertv  — Registered  copy  of  deed.— 

When  a  deed  is  iioi  in  the  control  of  the  govermnent  nor  of  the  de- 
fendant, a  registered  coiiy  is  comijetent  evidence,  and  such  evidence, 
togetlier  with  uial  testimony  that  the  owner  of  the  i)roperty  had  leased 
the  same  to  the  person  occuiiying  it,  is  sutticient  proof  of  the  owaer- 
shii)  and  possession  of  the  premises.     Com.  v.  Precce,  107 

10.  Identifvino  dkfkndant  ry  his  V( ncF..— Tlie  testimony  of  a  witness  at 

the  trial  of  a  criminal  case,  identifying  the  defendant  liy  his  voice,  the 
defendant  being  a  ])erson  whom  the  witness  hear  speak  only  once 
before  the  commission  of  the  offense  charged,  which  was  after  dark, 
is  competent,  and  it  may  be  considered  by  the  jury  in  connection  with 
other  evidence  as  to  identity.     Com.  v.  Hni/cs,  215 

11.  FAUltK  ATKi)  testimony  —  IMPEACHMENT.—  Where  the  defendant  testifies 

at  length,  in  the  effort  to  show  the  proper  and  lawful  manner  of  his 
liaving  certain  profierty,  it  is  competent  for  the  state  to  show  that  his 
statements  were  false  and  his  theory  without  foundation.  Turner  r. 
State,  •'•"• 

12.  When  two  crimes  are  dei'.rly  connected,  one  may  be  proved  by  estai)- 

lishing  till'  other.  '''• 

13    Evidenck  of  other  crime.— Asa  general  rule,  subject  to  exceptions, 
the  •Miilt  of  the  accused,  or  his  participation  in  the  couunissiou  of  an- 


I 


mm  ^. ' 

'''  I 

- ; '    f. 


670  AMERICAN  CRIMINAL  REPORTS. 

other  crime,  wholly;  unconnected  Avith  that  for  wliicli  lio  is  juit  on  his 
trial,  cannot  be  admitted  in  evidence  against  liiiu.    Sinillt  r.  The  Stati'. 

14.  Evidence  op  intoxication  —  Opinion  of  witness.— 'VVii ere  tlie  defend- 

ant is  charged  witli  liaving  pubHshed  tliat  the  in-osecuting  witness  liad 
"  been  intoxicated  on  several  occasions,"  lie  may  jtrove,  by  witnesses 
ac(inaiiited  with  such  prosecuting  witness,  that  tliey  had  seen  liini 
"acting  as  though  he  was  intoxicated."    State  v.  Mayhcrri/,  309 

15.  Res  oest.e. —  All  facts  in  evidence  properly  constituing  part  of  thoj'e.x 

(jCKtte  are  to  be  considered  by  the  jiuy  in  passing  upon  the  (|Ucstion  of 
guilt  or  innoceiK'c,  without  discrimination  as  to  tlie  ruli's  of  evidence, 
whether  introduced  by  the  prosecutor  or  the  defendant.  Kott  v.  'The 
Peoi)le,  406 

16.  Impeacuinu  character  of  witness.— The  state  cannot  impeach  the 

character  of  a  witness,  nor  discredit  him  before  the  jmy,  nor  impair 
the  weight  of  his  testimony  by  evidence  that  he  had  been  indicted  for 
a  felony.     Curr  v.  State,  438 

17.  Res  GEST.?i  are  the  surrounding  facts  op  a  transaction,  exi)lana- 

tory  of  an  act,  or  showing  a  motive  for  acting.  They  may  be  sul)- 
mitted  to  the  jury  provided  they  can  be  established  by  competent 
means,  sanctioned  by  the  law,  and  alFord  any  fair  presumption  or  in- 
ference 4is  to  the  question  in  dispute.  Id. 

18.  Same.— Circumstances    and    declarations    contemporaneous  with   the 

main  fact  under  cotisi<leration,  or  so  nearly  rel.ated  to  it  as  to  illustrate 
its  character  and  the  state  of  mind,  sentiments  and  disposition  of  the 
actors,  are  parts  of  the  re.s  ye.stie  —  are  regariledas  verbal  facts  indicat- 
ingajiresent  purpose  and  intention,  and  therefore  admitti'd  in  proof  a.s 
any  other  material  facts.  Id. 

19.  Coi.LATKUAi.  MATTERS— Impeachment.— When  a  witness  is(  ross-cxani- 

ined  on  a  matter  collateral  to  the  issues,  his  answer  is  couclusivi,'  as 
against  the  [larty  jmtting  the  question,  and  caimot  be  contradicti'd  by 
hnu  by  way  of  inqM-achment.     V\'elvh  v.  State,  4.jO 

20.  WllKN  IMMATERIAL. —  In  a  prosecution  for  murder,  where  no  evidence 

wah  introduced  by  the  state  to  show  llight  or  evjision  of  arrest,  evi- 
dence of  a  thii-d  person  that  the  accused  publicly  stateil  his  intention  of 
going  away  to  get  work,  and  not  t<j  avoid  prosecution,  is  imniatiiial 
and  inadmissible.  Id. 

21.  Deposition  read  without  ob,iection. — Where  the  deposition  of  a  wit- 

nessis  taken  at  theinstanceof  defendantand  read  on  l)ehair  of  the  people 
at  the  trial,  without  objection  on  his  part,  he  waives  his  right  to  sm  h 
objection,  and,  as  no  eiTor  upon  a  criminal  trial  can  be  maile  availal>l(^ 
unless  talien  on  the  trial,  the  admission  of  such  eviilerice  cannot  be 
consi<lercil.  nor  does  section  ')'M  of  the  Criminal  Code  change  the  rule. 
I'voplf  r.  (iiiidici,  1.").") 

23.  Until  assailed.  pik)oe  op  good  cuauactku  inadmissihi.e.— Until  the 
character  of  a  witness  has  been  attacked  by  evidence  that  his  it^piita- 
tion  tor  truth,  honesty  and  integrity  is  bad,  evidence  in  [iroof  of  his 
good  character  is  inadnussible.     J'cajilc  r.  HuhIi,  {."i'J 

23.  Declarations  —  Res  gest.k.  —  The  tleclaralions  of  a  party  made  while 

doing  an  act,  the  nature,  object  or  motive  of  which  is  tiic  suiqect  of 
inquiry,  are  admissible  in  evidence  as  a  part  of  the  tru  (/I'stte.  if  they 
ten<l  to  elucidate  or  give  characti'r  to  till-  ait   itself.     Stale  c.  UVf/Avr, 

nr. 

24.  Exci.rsTON  op  proper  testmionv. —  In  a  trial  for  nuu'der  by  shootin-, 

a  witness  for  the  respondent  Icstilied  to  the  situation  of  the  )iartiis 
and  the  appearance  of  the  i'es|iondcnt  at  the  moment  the  shot  was 
fired:  but  his  testimony  as  to  the  res|iondenfs  declaration  acconqiaJiy- 
ing  the  act  waa  exckuled.   Held,  that  such  declaration  wius  ailinissilil- , 


INDEX. 


put  on  his 
The  Stat,'. 

he  (It'fond- 
i  til  OSS  liad 

I  witnesses 

seen  him 

309 

of  the  re.i 
luestion  of 

eviilence, 

u')it  V.  The 

406 

I  peach  the 

nor  impair 

ulicted  for 

438 

«,  exphina- 
ly  he  suh- 
cuiiipetent 
tiou  or  in- 
Id. 

witli  tlie 
n  illustrato 
lion  of  tlie 
_'ts  indicat- 
in  proof  as 
Id. 

ross-cxani- 

iclusivi,'  as 

ailietiHJ  hv 

4.jO 

o  (■vi(h'nco 
arrest,  evi- 
titentioii  of 
inniiatiiial 
Id. 

in  of  a  wit- 
'  the  people 
;lit  to  siu  h 
e  availal)le 
'  cannot  lie 
;■(•  tile  mil', 
•lo") 

-Until  the 

iiis  leputa- 

I'oof  of  liis 

l."iii 

nade  wiiile 
suiiject  of 
lir.  if  Ihev 
c.  Wiilhr, 
4(ir. 

V  shoot  in'^-, 
tile  ]iartii"< 
e  sliot  was 
ccoiiipany- 
admissilij.'. 


671 


85. 


27. 


29. 
80. 
81. 


82. 
88. 


84. 


85. 


and,  lioinR  excluded,  tlie  presumption  is  that  such  exclusion  was  det- 
rimental to  the  interest  of  tlie  party  in  whose  hehalf  it  was  (offered.  Id. 
Brutal  conduct  of  accused -Physical  coxDmox  ok  decevsed- 
in  a  triid  tor  murder  it  is  coniiietent,  as  bearing  upon  the  question 
of  mahc,  to  prove  brutal  conduct  of  the  prisoner  tovvar.l  the  deceased 
for  several  davs  previous  to  the  death,  and  inav  f.illow  up  this  evi- 
dence by  sh.jwing  that  .ieeeased  was  in  ordinar^■  iieaith  before,  and 
that  lie  comidained  of  pains  after,  the  assault.     Williams  r.  Stcde,  513 

Post-mortem  examination.— The  mere  fact  that  n  pcit-woi-fem  ex- 
amination was  made  some  time  after  death  is  no  reason  in  itself  f<ir 
Us  exclusion  a.s  evideiu^e.  If  the  body  is  in  such  a  stat-  of  preserva- 
tion that  the  .lury  can  judge  whether  its  condition  was  caused  liv  (Hife 
or  post  mortem  injuries,  such  examination  is  competent  evidence'.    Id. 

Expert  testimony.— What  would  be  the  effect  of  violent  pressure  with 
the  foot  uiion  the  neck  of  a  man  in  a  given  position  is  competent 
expert  testimony.  j^ 

Hyi'othictical  case  —  How  framed.—  In  framing  a  hypothetical  ques- 
tion, the  state  is  not  re(iuired  to  set  forth  all  the  facts  and  cucum- 
stanccs  (it  the  case,  the  defense  having  the  right  tt  introduce  any 
cinnuiistance  omitted.  j^ 

Opinion  as  to  instrument  ixflictino  wound.— An  expert  may  give 
an  opinion  as  to  the  manner  of  instrument  by  which  an  uijury  was  in- 
flicted, jd. 

Opinion  ox  facts.— An  expert  may  give  an  opinion  upon  a  statement 
of  facts  asstuned  to  be  in  evidence,  but  not  upon  the  conclusions  or 
inferences  of  another  witness.  J(i. 

Physician  may  state  that  he  gave  same  kind  of  drug  to  another 
PERSON  \vitM(>ut  IN.IURV.— Where  the  physician  who  attended  the 
deceased  in  his  last  illness  administered  bisinuth  to  him.  and  the  (pies- 
tion  is  made  whether  it  mi;;ht  ii"t  have  containeil  arsenic,  lie  may  tes- 
tify that  he  afterwards  f;ave  the  same  kind  of  bisnuitli  to  another 
patient  without  injury,  and  it  may  also  be  shown  that  a  •.beiuist  who 
analyzed  bisnuitli  from  the  same  package  found  no  traces  of  arsenic 
ui  it.    Epps  i\  Tin'  State,  417 

Medical  books  are  not  admissible  as  testimony.  Id. 

Expert  tiostimoxy. —  Where  a  physician,  testifying  as  an  expert,  ex- 
presses the  opinion,  uiion  a  hypothetical  case,  that  the  deceased  came 
to  his  death  by  arsenical  poison,  he  may  properly  be  asked,  in  behalf  of 
the  accused,  wlu'ther  his  conclusion  is  one  of  certainty  or  only  of  high 
iirobability,  but  the  refus;dof  the  court  to  ])ermit  the  question  may  not 
lie  availalile  error  in  the  light  of  other  exjiert  testiiimny.  Id, 

Hostility  oe  witness  — CoNTRAnicTouY  stathmknts.- There  is  no 
diiFerence,  so  far  as  the  rule  is  conc(n-ned.  1  n't  ween  iidmitting  in 
evidence  ii  declaration  of  bostilily  of  a  witness  lor  tin'  luirpuse  of  af- 
fecting the  value  of  his  testimony,  and  admitting  cuiilrailictory  state- 
ments for  the  same  purpose,  as  in  either  case  an  oiiiiortiiiiityshould  be 
given  the  witness  to  explain  what  be  said.    Siiilc  r.  Maclccj],  533 

POINTINO  OUT  LOCUS  OF  CRIME  ON  MAP.— AVIiere  ill  a  capital  case  a 
map  of  the  locality  has  been  introduced  in  evidence,  and  the  iilace  of 
homicide  iilentitied  thereon  by  other  witnesses,  /(c/i/,  thai  there  is  !io 
erroi  in  asking  a  witness,  if  the  place  of  the  honiiciile  had 
shown  to  him,  to  point  it  out  on  the  map,  and  to  loiate  a  lionst 
other  obiects  with  ivrereiice  thereto.     .S7((/t'  r.  McKliiiic//. 


IHTII 

ard 
:.:)8 


86.  Pos 


KSSIdN    OF    Ml 


ANs  TO  COMMIT  CRIME  riiAiiOED.— It  is  always  com- 


petent lo  introiltice  testimony  in  a  capita 
sion  in  the  defendant  of  the  mi'ans  of  com 


•ase  tending  to  showposses- 
iiiiitting  till'  homicide  in  the 


manner  in  which  it  was  coniiii 
liitt  part  touariU  the  deceased. 


itted,  and  also  threats  and  ill-feeling  on 

Id. 


672 


AMERICAN  CRIMINAL  REPORTS. 


^l  ;■, 


1' 


87.  LATiTrPE  op  CROSS-EXAMINATION  —  Discretion  op  court  in   admit- 

TINU  TKSTiMONY.  —  Where  on  tlie  trial  of  a  person  cJi.irj^eil  with  mur- 
der, had  mure  tlian  a  year  after,  a  witness  for  tlie  defendant  testified 
to  certain  material  facts,  to  wit,  the  ai>|)earaiico  of  three  strangers 
riding  rapidly  away  from  the  place  of  the  homicide  riglit  after  the 
time  it  must  have  taken  pla(;e,  held,  that  tiie  state  might,  on  cross- 
examination,  ask  the  witness  wlioni  he  told,  if  any  one,  of  these  facts. 
And  ui«)n  certain  persons  l)eing  named,  might  also,  in  the  discretion  of 
tlie  court,  prove  by  such  persons  that  nothing  of  the  kind  was  ever 
toll!  them.  Id. 

88.  CoHUOBOHATINCt  TESTIMONY  OF    WITNICSS    SOUGHT    TO    BE    IMPEACHED.— 

Wliere,  for  the  purpose  of  impeacliing  a  witness  for  the  state,  the  de- 
fendant introduces  witnesses  who  testify  that  at  the  preliminary  exam- 
ination tliey  heard  tiie  former  witness,  and  tliat  he  did  not  then 
mention  the  facts  testified  to  hy  liim  on  the  trial,  held,  that  the  state 
might  in  rebuttal  call  other  witnesses  also  present  at  such  examination 
to  testify  that  they  heard  the  witness,  and  that  he  did  then  mention 
these  facts.  Id. 

89.  Theory  op  defendant  who  testifies  in  his  own  bkhalp.— When 

a  defendant,  who  has  a  right  of  election  as  to  several  defenses,  takes 
the  stand  Jis  a  witness,  and  makes  such  admissions  as  render  every 
theory  of  defense  unavailable,  save  one,  he  will  be  deemed  to  have 
elected  that  one.     Andernon  v.  State,  601 

40.  Attemit  to  escape  may  be  considered. —  The  attempt  of  a  prisoner, 

under  indictment  for  a  criminal  olfense,  to  escape  from  jail,  maybe 
considered  in  connection  with  the  other  evidence,  in  determining  the 
question  of  his  guilt  or  inncK-ence.  Id. 

41.  The  court  decides  on  the  competency,  the  jury  upon  the  sufHciency,  of 

evidence.     Winsluw  V.  Tlui  State,  43 


43.  The  entire  res  gestce  to  be  laid  before  jury. 
Horse-shoe  tracks,  see  Arson,  4,  9. 


Kent  V.  The  People,        406 


EXPERT  TESTIMONY. 
See  Evidence,  27,  33. 

EXTORTION  IN  OFFICE. 

Justice  dkmandino  illegal  fees,— It  is  extortion  under  the  stitute  for 
a  justice  of  tiie  ])eace  to  demand  or  tusk  for  his  fees  from  the  ])roaecu- 
tor  for  the  issuing  of  his  warrant  on  u  criminal  complaint,  the  said 
justice  knowing  that  such  demand  is  illegal.    Lane  v.  State,  215 

EXTRADITION. 


1.  Sections  5278  and  5279  of  the  Revised  Statutes  of  the  United  States, 

requiring  the  arrest  and  surrender  of  a  fugitive  from  justice,  found  in 
one  of  the  territories,  to  the  state  in  wiiich  he  stands  ciiarged  with 
treason,  felony,  or  other  crime,  embrace  every  olfense  known  to  tiu' 
laws  of  the  demanding  state,  including  misdemeanors.  E.c  parte  lte<j- 
gel,  21H 

2.  Eacli  state  has  the  right  to  establish  tiie  forms  of  phadings  and  proces- 

to  be  observed  in  its  courts,  in  both  «'ivil  and  criminal  cjises,  subject 
only  to  those  provisions  of  the  constitution  of  the  United  States  involv- 
ing the  protection  of  life,  liberty  and  pro|icrty  in  all  tlie  states  of  the 
Union.  /(/. 


INDEX. 


073 


IN  ADMTT- 
witli  niur- 
nt  testified 
a  strangers 
t  after  the 
it,  on  cross- 
tlu'Ho  facts, 
iscrotion  of 
I  was  ever 
Id. 

PEACHED.— 
ate,  the  de- 
nary exam- 
il  not  then 
lat  the  state 
xaiiiination 
ea  mention 
Id. 

LF. —  Whi-n 
enses,  takes 
jnder  every 
led  to  have 
601 

a  prisoner, 

jail,  may  be 

rmining  the 

Id. 

ifficiency,  of 
43 

opU,        406 


statute  for 
he  jiroseou- 
rit,  the  said 
215 


itod  States, 

found  in 

argod  with 

own  ti>  the 

parte  Jieft- 

21H 

and  proct's.-. 
.ses,  subject 
ateainvolv- 
Lates  1)1  the 
Id. 


8.  Upon  the  executive  of  the  state  in  which  the  accused  is  found  rests  the 
resiK)nsihillty  of  deteruiiniug  whetiier  he  is  a  fugitive  from  llio  justice 
of  the  demanding  state.  Id. 

4.  If  the  determination  of  that  fait  by  the  executive,  upon  evidence  intro- 
duced lu'lorc  him,  is  subject  to  judicial  review  upon  habeas  corpus,  the 
accnsetl.  being  in  custody  under  his  warrant  —  whi(!h  recites  tiie  requi- 
Hiti«)n  of  the  denumtling  stat<',  accompanied  by  an  autiientic  indictment, 
charging  him  substantially  in  tiie  language  of  her  statutes  with  a 
specilic  crinu^  couunitted  within  her  Ihnits, —  shoulil  not  be  discharged 
merely  because,  in  the  judgment  of  tlie  court,  the  evidence  as  to  his 
being  a  fugitive  from  justice  was  not  as  full  as  nught  properly  have 
been  reipiired,  or  because  it  was  so  meager  as,  perhaps,  to  admit  of  a 
conclusion  dilfereiit  from  that  readied  by  hiui.  Id, 

FALSE  PRETENSES. 

1.  Upon  the  trial  on  an  indictment  for  obtaining  money  under- the 

FALSE  PRL.  -  SE  that  a  certain  la-omissory  note  was  genuine,  the  ac- 
cused may  »)tfer  testimony  to  show  that  the  names  subscribed  to  such 
nt)tes  had  been  written  by  himself,  under  instructions  of  the  parties 
whom  he  had  represented  as  the  makers.     State  v.  Lurch,  234 

2.  Promissory  note  — (Jesuineness  oe  note  subscrihed  by  direction  op 

the  apparent  .maker. —  A  promissory  note,  to  which  the  name  of  the 
apparent  maker  has  been  subscribed  by  another  party,  under  the 
instructions  of  such  apparent  maker,  is  u  genuine  note,  and  will  bind 
the  party  giving  such  directions.  Id. 

See  Conspiracy,  15,  7. 


FELONY  AND  MISDEMEANOR. 

Convertin(J  money  received  from  a  iiTY  TREASURER.— Under  the 
Laws  of  187."),  ch.  IS),  and  2  Rev.  St.,  702,  J^  !50,  one  who  fraudulently 
and  feloniously  re<eives  money  from  a  city  treasurer,  and  converts 
tiie  same  to  his  own  use,  commits  a  felony,  and  not  merely  a  misde- 
meanor.    I'ciiplc  V.  Lnim,  10 

Grade  of  offense  determined  by  punishment  prescribed.—  The  grade 
of  an  otTense  is  determined  by  the  nature  of  the  punishment  prescribed 
for  the  act.  ^f'- 

Under  the  slander  act  of  186J),  slander  is  a  felony,  and  not  a  misde- 
meau'r.  and  it  is  not  left  to  the  court  or  jury  to  say  wliich  it  is.  State. 
V.   Waller,  831 

The  legislature  has  the  right  to  jn-ovide.  in  felony  <'nses,  alternative 
punishments,  to  lie  left  at  the  dis(  retion  of  the  com-t,  of  such  nature 
as  belong  to  misdemeanors;  and  this  discretion  to  mitigate  the  punish- 
ment does  not  alter  the  nature  of  the  crime. 

FORGERY. 


4. 


Id. 


An  instrument  readino  thus:  „,     ^  t       m     qqi 

"  La  Granoe,  June  19,  i881. 

"  Mr.  Allen:  Please  let  A.  Garmire  have  team  to  go  to  Mongo,  and 

2T^Titing"ol!ligatory  promising  to  pny  money  within  tl"'  '"^"""K 
of  the  statuti- tletining  the  crime  of  forgery.    Ganmre  r.  Stale.    23H 

iNDicTMFvr.-Tlie  indictm.'iit  must  show  that  the  instrument  is  one  hay- 
ing some  legal  etlVct.  but  it  is  not  necessary  that  it  should  be  shown  to 
be  a  perfei  rinstniinent.  •'   * 

Vol.  V  — 43 


,., 


674 


AMERICAN  CRIMINAL  REPORTS. 


Resemblance  of  korqed  to  genuine  instrument.— A  charge  of  for- 
gery may  he  based  up«)n  an  instrument  which  bears  such  a  resemblance 
to  the  document  which  it  is  intended  to  represent  as  is  calculated  tu 
deceive.  Felons  cannot  escape  punishment  upon  the  ground  that  the 
person  whom  they  deliberately  set  to  work  to  wrong  was  lacking  in 
care  and  vigilance.  Id. 


FORMER  CONVICTION. 
See  Practice,  9.    Autrefois  Acquit  — Autrefois  Conviot. 


,.  . 


; !', 


FRAUDULENT  SALE  OF  MORTGAGED  PROPERTY. 

1.  Sellino  mortqaqed  property.—  An  indictment  for  selling  mortgaged 

projierty  must  show  not  only  that  the  mortt;aKe  was  recorded  or  tiled 
with  the  clerk  as  a  reconl,  but  also  that  it  wiw  ackiunvledged ;  and  it 
would  'je  better  to  state  the  name  of  the  punjhiuser,  or  that  his  name 
was  unknown.    State  v.  Harberson,  245 

2.  Fraudulent  sale  of  mortqaqed  personal  property— Indictment.— 

On  demurrer  to  inrlictment  under  Gen.  St.  1878,  ch.  39,  S  14,  for  a  fraud- 
ulent sale  of  mortgaged  personjil  pi()i)ert}',  held,  tiiat  an  allegation 
that  the  defendiint  "sold  and  disiKtscd  of  the  property  to  one  A.  B., 
and  divers  other  persons,  whose  names  were  to  the  grand  jury  un- 
known," charges  only  one  oireiisi'.    State  v.  W'illidins,  242 

8.  Attachino  instrument.— Tlie  indictment  alleged  that  defendant  exe- 
cuted a  mortgage,  "  of  wliich  a  true  copy  is  hereto  attached,  marked 
'Ex.  A,,'  and  hereby  made  a  part  tliereof."  A  copy  of  tlie  mortgage 
thus  marked  was  attached.  Helit,  tliat  wliiK'  the  nractice  of  attaching 
an  instrument  iis  an  exhibit  is  loose,  objectionable,  and  not  to  be  en- 
couraged, yet  u])on  demurrer  the  exhibit  must  be  deemed  a  part  of 
the  indictment.  Id. 

4.  "  Havino  conveyed  by  MORTriAOE."— The  expression  "  having  conveyed 
by  mortgage,"  as  used  in  tliis  statute,  simply  means,  "  having  executed 
a  mortgage."  Jd. 

6.  Averment  of  owneijship.- It  is  not  necessary  to  allege  in  the  indict- 
ment that  the  defendant  was  the  owner  of  the  property  mortgaged. 

Id. 

6.  Growixq  crop.— a  growing  crop  of  grain  is  personal  pro])erty  within 
the  meaning  of  tliis  statute.  *  Id. 

GRAND  JURY. 

1.  Court  has  power  to  postpone  sittinq  of  orand  Jt  rors  to  any 
week  of  the  term  for  which  thev  ark  drawn.—  When  the  regular 
term  of  tlie  court  li(>gins  on  the  first  Monday  of  Miiy  and  ( ontinui-s  for 
two  weeks,  the  court,  for  tlie  acconiiiiodation  of  comisel,  may  make 
an  order  on  the  first  day  of  the  term  detaining  the  grand  and  petit 
jurors  for  service  during  the  following  week,  to  wliieli  the  trial  of 
causes  is  jiostponed.  In  obedience  to  this  order,  the  jurors  iip- 
peared  on  the  second  Monday  of  the  term,  to  which  time  the  said 
several  courts  had  been  regularly  adjourned,  and  during  this  sitting  of 
the  grand  jury  an  indictment  for  nmrder  was  found  against  A.  At 
the  trial  his  counsel  moved  to  ((Uashtlie  indictment  on  tlie  ground  that 
the  court  hiul  no  power  to  detain  the  grand  jury  under  the  circum- 
stances stated.  //('/(/,  that  tlu>  court  hail  such  power,  under  the  act  of 
March  1H,  IHT.'i.  sec.  2  (P.  L.,  ',N).  and  that  the  actual  bodily  presence  of 
the  jiu'ors  at  the  time  the  order  wiis  made  was  not  necessarv:  Ihe 
service  of  process  upon  the  perisons  drawn  gave  the  court  jurisdiction 


INDEX. 


675 


harge  of  for- 
i  resemblance 
calculated  to 
lund  that  the 
is  lacking  in 
Id. 


NVIOT. 


iTY. 

ng  mortgaged 
orded  or  tiled 
B(lged;  and  it 
;hat  his  name 
245 

N'niCTMENT.— 
4,  for  a  fraud- 
iin  allegation 
to  one  A.  B., 
and  jury  un- 
24'i 

'fondant  exe- 
clied,  marked 
the  mort^ajre 
i>  of  attaching 
not  to  he  en- 
ned  a  part  of 
Id. 

ing  convej'od 
•ing  exe(.'ut('(l 
Jil. 

n  the  indict- 
y  mortgaged. 
111. 

3i)erty  within 
^  Id. 


ORS    TO    ANY 

n  tlie  regular 
(•(intiinies  lor 
I,  may  make 
lid  and  petit 

the  trial  of 
Jurors  ap- 
inie  the  saiil 
his  sitting  of 
gainst  A.  At 
•  ground  that 

the  circum- 
tT  the  act  of 
y  pi-escncc  of 
ecfssarv;  the 
,  juriiitlictiou 


O'  r  them.  The  failure  of  the  clerk  to  record  the  order  diil  not  affect 
its  validity,  ami  the  evidence  of  it  was  properly  supplied  by  the  entry 
of  an  order  nunc  pro  tunc.    TruviHK  v.  The.  Com.,  256 

2.  The  giund  .ivky  undkr  the  code.— The  provision  of  the  Code  of  Crim- 
mal  Procedure  (sec.  220).  authorizing  a  grand  jury  to  be  drawn  "for 
every  other  court  of  sessions"  than  the  courts  specified  in  section  285, 
was  intended  to  inovide  for  agrand  jury  when  no  designation  is  made 
by  the  county  judge  in  jairsuance  of  section  4o.  einj)owering  him  to 
designate  the  terms  of  such  court  in  his  county  at  which  a  grand  jury 
is  re<juired  to  attend,  or  when  sjjecial  circuinstaiices  exist  ri'([uiri'iig  a 
grand  jury,  ajside  fioi  i  those  jirovided  for  in  said  section.  Where,  con- 
Becjuently,  the  terms  of  said  court,  and  those  at  which  a  grand  jurv  is 
re<iuired  to  attend,  have  l)een  designated  by  the  county  judge,  an  order 
of  court,  or  of  the  hoard  of  supervisors,  is  "not  absolutely  necessary  to 
legalize  the  summoning  and  drawing  of  a  grand  jury  at  a  court  so 
designated.     People  v.  Riigg,  247 

GROWING  CROPS. 
See  Personal  Property. 

HABEAS  CORPUS, 

1.  The  leoauty  of  commitment.— The  relator  was  arrested  by  an  officer 

charging  him  with  being  into.xicated,  and  brought  before  a  justice  of 
the  peace  to  disclose  the  person  of  whom  he  obtained  his  liquor. 
He  disclosed  that  he  was  not  intoxicated;  that  he  liad  not  drank  anv 
intoxicating  licjuor  on  the  day  of  his  arrest,  ami  offered  other  testi- 
mony than  ids  own  to  (irove  that  fact;  but  the  justice  refused  to  hear 
it,  and  committed  him  to  jail  until  he  would  disclose.  Held,  that  the 
imprisonment  was  ille,;;al,  and  that  tlie  relator  was  entitled  to  be  dis- 
charged on  liabea.H  eorpn.'i.    In  re  Ilavdhjan,  2C9 

2.  Justice  re.iectino  evtden'ce  which  it  w.\s  his  duty  to  hear.— Tlie 

justice  should  have  tiist  determined  wlietlu-r  the  relator  was  in  such  a 
state  of  intoxication  as  to  disturb  the  public  peace.  The  officer's  re- 
turn was  not  conclusive  of  that  fact,  and  the  relator  had  a  right  to 
meet  it  with  contratlictory  proof,  which  it  was  the  duty  of  the  justice 
to  hear.  Id, 

8.   RiOHTS  of  relator    not    nEI'EXDENT    UPON    OFFICER'S    RETtTlN. —  In    a 

habea.t  corjms  hearing  the  rights  of  the  relator  are  not  de]ieii(lent  upon 
the  of1icer"s  return ;  but  uiiiier  the  statute  (K.  L.,  sec.  i:]0:{)  he  may 
deny  the  return,  and  allege  other  material  facts.  Thus  the  return 
showed  that  the  justice  found  that  the  relator  "had  been  intoxicated, 
and  had  disturbed  the  iniblic  peace."  but  the  supreme  court  find  from 
facts  alleged  in  the  relator's  complaint  that  he  was  not  intoxicated. 

Id. 

4.  Plea  of  ouilty— Jury  must  fix  ruNisiiMENT.— Where  a  prisoner 
l)leadH  guilty  to  a  charge  of  murder  in  the  first  degree,  it  is  error  for 
the  court  to"  fix  his  punishment  without  calling  in  a  jury.  Loterei/ v. 
Howard,  '•^"''^ 

6.  Erroneous  judgment  —  Collateral  attack  —  Habeas  corpus.— 
Where  a  court  htus  jurisdiction  of  the  person  and  subject-matter,  its 
judgment,  though  erroneous,  cannot  be  collaterally  assailed  on  hiihen.s 
corpus.  ^'^• 

INCEST. 

Incest  — Consent.— The  question  of  consent  of  the  female  does  not 
necessarily  enter  into  the  composition  of  the  offense  of  incest,  and  a 
prosecution  for  that  offense  mav  be  maintained  upon  proof  that  estab- 
lishes either  her  consent  or  non-consent  to  the  carnal  intercourse.  Mer- 
cer V.  The  tihite,  '^^"^ 


676 


m       ::i 


AMERICAN  CRIMINAL  REPORTS. 


INDICTMENT. 


1.  Attrmpt  to  commit  BrRfii.AUY— Indictmrnt.— An  inflirtmont  which 

alldni's  that  tlif  ilct'oiidfint,  "  in  tl>e  iii>;ht-tinu!,  IVloiiiously  did  attempt 
t<)  hrealt  and  eiitor,  with  intt-nt  tlie  K<'i>dH  and  tliattt'is  in  said  buihling 
then  and  tliere  boing  found  then  and  tliore  feloniously  to  steal,  take 
an<l  carry  away,  and  in  siieh  attempt"  did  certain  acts,  but  was  intiT- 
c^»|»ted  and  prevented  in  the  execution  of  the  olTcnse,  is  sutticient. 
Com.  r.  Slicihl,  61 

2.  Inuk  TMUNT  —  I.MMATKRIAL  AiJ.ECiATiON.— The  ijidictmcnt  having  named 

the  owner  of  tlie  house,  the  naming  therein  also  of  another  i)ers(m  aa 
tenant,  when  as  a  tact  the  tenant  had  surrendered  the  jnemises  a  few 
hours  lu'l'iire  the  commission  of  the  crime,  is  not  a  fatal  defect.  The 
liitter  allegation  was  immaterial.    Stitte  v.  Dim,  9;> 

3.  Indictment  for  consi'ikacy  without  chaiujing  a  rouufiT  confkd- 

KBATios. —  All  iiKJictment  for  conspiraiy  against  the  memlwrs  of  a 
board  of  chosen  freeholders  for  combining  to  vote  a  sum  of  money  out 
of  the  county  funds  in  favor  of  a  tliird  i>ers()n  is  bad,  not  charging 
that  the  confederation  w;is  corrupt,  or  that  the  third  jierson  was,  to  the 
knowledge  of  the  defendants,  disentitled  to  tiie  nu)Uey.  Wood  r. 
Statf,  123 

4.  A  state's  attorney  has  no  authority  to  amend  an  indictment  found  by  a 

grand  .jury,  by  his  individual  indorsement  thereon,  of  a  date  dilferent 
from  that  found  by  the  grand  jury.     Dickson  v.  'J  lie  Stdtt;  '2'M 

5.  The  defendant  was  indicted  in  April,  18S  t.     The  otfense  wjls  charged  to 

have  been  committi-d  in  Decemljcr,  18H4.  Tlie  state's  attorney  indorsed 
upon  tlu!  indictment  over  his  signature  these  words:  "The  date  upon 
whicli  the  state  relies  is  tiie  10th  day  of  December,  A.  D.  1H83,  and 
not  the  10th  day  of  December,  A.  D/lKSl."  Held,  that  the  amend- 
ment was  void  and  did  not  change  the  allegation  in  the  indictment  in 
that  respect.  The  time  allegeil  is  matter  of  substance,  and  it  being  an 
impossible  day,  the  indictment  wa.s  bad,  and  the  judgment  is  arrested. 

Id. 

6.  Two    OR    MORE    DISTINCT    ACTS  CONNECTED    WITH    SAME    TRANSACTION.— 

Where  a  statute  makes  indictable  two  or  more  distinct  acts  connected 
with  the  same  transaction,  each  of  which  may  l)e  considered  as  rejire- 
senting  a  phase  of  the  same  event,  they  may  be  coupled  in  one  count. 
Votn.  V.  Miller,  299 

7.  Forcible  entry  and  detainer. —  A.  and  B.  were  indicted  for  forcible 

entry  and  detainer,  the  indictment  containing  but  one  count.  Before 
plea  tiled,  their  counsel  moved  to  quash  the  writ,  which  the  court  re- 
fused to  do.  Th(!  jury  returnt.'d  a  verdict  of  not  guilty,  but  tliat  the 
defendants  pay  the  costs.  Defendants  then  moved  in  arrest  of  judg- 
ment, because  the  indictment  was  void  for  dui)licily.  The  court  sus- 
tained the  motion  and  arrested  the  judgment.  7/t7</,  error ;  that  the 
indictment  was  good,  and  judgment  or  sentenci!  should  have  l)eeii 
enti-red  thereon.  Jd. 

8.  Continuando  —  Evidence. —  When  an  indictment  charges   an  olTense 

with  a  continuuiKlo,  evidence  is  admissible  to  prove  the  commission 
of  the  otfense  at  any  time  within  the  period  .illeged.     Shiie  v.  N<i<]1c. 

;t;« 

0.  Same— Evidence  when  given  day  is  alleged.— When  an  indictment 
oliarges  an  offense  as  committed  on  a  given  day,  evidence  is  admissible 
to  prove  the  c(jnnnission  of  the  olfense  either  on  the  given  day  or  on 
any  other  day  before  the  finding  of  the  indictment  and  within  the 
I)erio<l  of  limitation,  but  only  on  one  day.  /('. 

10.  Prosecutor  should  specify  the  day  to  which  his  proof  will 
APPLY. —  When  an  indictment  charges  an  o(T»'nse  a.s  conunitted  on 
a  giveti  day  and  the  prosecutor  wislies  to  introduce  evidence  of  its 


i-:i': 


INDEX. 


077 


mont  which 
mUiI  attempt 
laiil  ImiUliti)^ 
o  Hteal,  take 
lit  was  inter- 
is  sufliciont. 
61 

aviiiR  named 
er  })ers()n  as 
emises  a  few 
defect.     Tlio 

I'lT    CONFED- 

lemlwrB  of  a 
jf  money  out 
not  eliar}j;ing 
m  was,  to  the 
y.  Wood  V. 
^  123 

it  found  by  a 
kite  dilferent 

<;  2i»7 

Its  charged  to 
rney  indorsed 
he  date  upon 
D.  \m],  and 
tlie  aiiiend- 
ndietnient  in 
id  it  iM'ing  an 
It  is  arrested. 
Id. 


.11  on  another  day.  lie  slionid  s|ici'ify  heforehand  the  day  to 
liroiil'  will  !t|i|ily,  otherwise  he  will,  hy  iutrodiuin;;  eviilenee 


■ts 


ANSAOTION.— 

conneited 
ed  as  rejire- 
in  one  count. 

for  foreililo 
unt.     Bi'fore 
lie  ccnirt  re- 
hut  that  tliu 
•St  of  judg- 
court  suB- 
or;  that  the 
have  heen 
hi. 

an  ofTensi' 
eoiiiniission 
ite  V.  NiK/k. 
U;i2 

n  indictment 
is  admissilile 
;n  day  or  on 
witliin  tho 

PllOOF    WILL 

unmitted  on 
dence  of  its 


11, 


commissK. 
wliidi  ids 
referring  the  offense  to  one  day,  he  contined  to  that  day.  Id. 

Same — When  on  more  than  onk  day  I'Uoski  i  roit  should  elixt  it. — 


Wlien  an  indietment  eliar;;ed  an  nlVeMsi^ 
and  evidence  at  the  trial  was  admitted  t 


imiiiilti'd  on  a  );iven  day, 
eiii.iii^;  to  prove  the  eonimiu- 


siou  of  tlio  offense  on  other  <lays  also,  held,  tliat  the  prosecutor  should 
have  been  required  t(j  si)ecify  the  day  on  which  he  woulil  go  to  the 


jury. 


Id. 


12.  An  indictment  alh'ging  the  larceny  from  the  i)erson  ol  "  divers  jaomis- 

Kory  notes,"  and  of  'divers  coins  of  the  Ignited  States  current  as 
money  in  said  comnunwealth."  with  jiroper  averments  of  value,  own- 
ership and  possession,  is  suflicient.     Com.  i'.  Colliii.s,  345 

13.  "One  book,  of  tlu?    value  of  §(1,  the  personal   ])roperty  of  licvi   W. 

"Walker,"  is  a  description  sutHciently  accurate  in  an  indict iiuiit  charg- 
ing larceny.     Tiinier  v.  Tin-  Stale,  300 

14.  Not  necessary  to  ai.i.koe  that  acctsed  held  ci.i'i!.— An  uidictment 

for  muiiler,  hy  killing  with  a  cluh,  is  not  had  for  iiota\erring  llial  the 
accused  held  the  cluh  in  his  hands.     Dainis  x'.  titcde,  409 

15.  Not  necessauy  to  ciiakok  assai'LT  and  hatteuy.— In  an  irullctineut 

charging  murder  in  the  lirst  degree,  it  is  luuiecessary  to  allege  an 
assault  and  Imtlery  on  the  body  of  the  deceased  in  formal  terms.     Id. 

16.  Indictment  eor  mii  di;u.— It  is  not  essential  to  the  validity  "f  an  in- 

liictnieiit  for  iiiiu'der  that  it  should  alle;:o  thai  the  killing  was  "  un- 
lawfully done:  "  nor  thai  the  di'leiidant  was  "a  iierson  of  si  huh  I  mem- 
ory ami  discretion  ;  "  imr  that  the  deeca^eil  was  •"  a  reasoiialile  cn^atiiro 
in  being,"     Hcaii  c.  The  Sidle,  477 

17.  GaI'TIon  —  Venle.— For  many  purposes   the    caption  is  considered  a 

l)art  of  the  imliitment,  and  it  may  aid  in  showing  the  venue.  An- 
densoH  V.  Slate,  001 

18.  DEMrUREK   DOES   NOT   LIE  WHEN   INDICTMENT  IS  UF.Cfl.AR  0\  ITS  FACE.— 

That  III'- court  at  the  time  an  indictment  Wiw  Iraiiied  was  illegally  held, 
because  it  had  not  been  ailjoiirned  and  convened  a'^cording  to  law,  waa 
not  matter  which  eoalil  be  taken  advantiige  of  by  deiiuirrer,  l)ut  by 
l>iea.  ])roiierlv  veriht'il,  the  indictment  being  regular  on  its  fa' e. 
MeRae  v.  The  Slate.  032 

19.  Where  oneistrleil  on  an  indictment  containing  counts  for  both  burglary 

an<l  hirceiiv,  and  is  ac'iuitlcl  of  the  burglary  only,  he  will  he  ri"''ty 
of  grand  or  petit  larceiiv  aicording  to  the  value  of  the  properly  stolen. 
Stale  r.  lleea.e,  '  ^^ 

20  In  bur  d.irv,  ownership  of  building  burglarized  must  be  alleged.  I'elh 
V.  The  St'ale,  *^6 

See  AiiDii'TioN.  2.  ;$.  .Vttemi't  to  Kscai'e  from  Prison.  1,  2.  Consi'H?acy. 
2,  ;{.  4.  •"•.  H.  SI.  CRiEi.TY  TO  Animals.  1.  2.  Emiuczzlement.  2.  0. 
Frvidi'lent  Sale  of  Mortoaoeu  rRoi'EUTY.     I'uactke  (Uetirn  oF 

INDICTMENT,  12;   iloTlON   To   yl'ASH,    l^J;    WITHDRAWAL  OF  PLEA,    14). 


INFANT. 

An  infant  over  fourteen  years  of  ago  fraudulently  converted  to  liis  own 
use  goods  which  had  'been  delivered  to  him  by  the  owner  under  an 
agreement  for  the  iiire  of  the  same.    Held,  thixt  he  wa.s  rightly  ccm- 
victed  of  larcenv,  as  a  iiailee  of  the  goods,  under  24  aud2j  \  ict.,  ch.  90 
BOG.  3.     27(6  Queen  v.  McDonald,  '^^'^ 


678 


AMERICAN  CRIMINAL  REPORTS. 


INFORMATION. 


1.  Attempt  to  rape. —  A  criminal  infoiniiilion  iiiidor  soctions  283  and  81 
of  the  crimes  Jiiul  punisluiicnts  act,  <'iiar;j;iii}?  tiie  (IcCeiidant  with  an 
uttcMipt  carnally  and  unlawfully  to  know  a  female  chil<l  under  the  ago 
of  ten  years,  may  he  huHicient,  althou;;h  the  word  "rape"  may  n(jt  he 
used  in  tlio  information.    Stute  v.  Hurt,  66 

3.  WoKDS  DKFlNlN'a  OFFENSE. —  Tlio  t'xact  words  used  in  u  criminal  stat- 

ute defining  u  puhlic  olfeuse  arc  never  re(|uired  t(J  he  used  in  a  crim- 
inal information  charging  such  offense,  hut  any  ecjulvalent  words,  or 
liny  words  clearly  and  inteiligihly  setting  ftirth  the  offense,  are  sufli- 
cient.  Id. 

8.  Verukt  — Attkmit  tu  commit  rape.— In  a  criminal  prosecution, 
where  the  information  sutliiiently  charges  the  defendant  with  attempt- 
ing to  commit  the  olFeiise  of  rape  hy  si'eking  carnally  and  nnlawfully 
to  know  a  female  child  under  the  age  of  ten  years,  hut  dues  nnt  uso 
the  word  "  rape"  in  cliai'ging  the  offense,  anil  the  jury  liiid  th;i(  the 
defenilant  was  "  guilty  of  an  attiiiiiit  t"  connnit  a  rape,  as  cliargcd," 
the  verdict  is  suftii'iently  responsive  to  the  information,  and  is  valid. 

Id. 

INSANITY  AS  A  DEFENSE. 

Test  of  mental  (WPAcirv.— A  person  a(<used  of  crime  who  had  suf- 
ficient intelligence  and  reasoning  powers  to  know  what  he  was  doing, 
that  it  w;ui  wrong,  and  the  will  and  nuntal  powers  to  do  or  not  to  do 
it,  in  contemplation  of  law  is  responsihie.     State  v,  Aucun,  307 

INSTRUCTIONS. 

1.  INSTRCC'TION  to  jury  — J-'aLSIS    in   INC).  FAI.SUS  IN  OMNIHUS.— In    CatiO 

the  court  instructs  the  lury  peremptoiily  to  reject  the  entire  testimony 
of  a  witni'ss  who  has  tc.-.tiiicd  falseiv  as  to  one  fact,  it  should  add  that 
any  of  stuli  testimony  nn  is  huppoiied  hy  corrohoralive  testimony  is 
excepted  from  such  instruction :  hut  when  the  instruction  sug.i,c^ls  that 
the  jury  tiinij  rcj<:ct  such  testimony,  the  court  need  not  mention  such 
exception.     Mitiivh  v.  I'coplc,  20 

2.  RiiASONAiiLE  DiiLfiT — biU'iNtTiox.— In   IunI ru<t iuu;  the  jury  as  to  the 

reasonahli' dnulit.  of  tilt  prisoner's  ^^iiilt  that  slicriilil  prevent  his  con- 
viction, it  is  n.ii  error  lor  the  coiirt  to  e.\pijiii  that  "it  is  such  a  douht 
iis  would  cause  a  rea.Miiiahle  man  to  her-it.ite  and  pause."  Id. 

8.  Eeasonahi.k  TUKMitv  fi'oN  WHICH  to  (itiii'.kwisk  aicocnt  Iou  tiii; 
CIJIMK. —  111  a  ('ase  when  coiivirtion  is  to  rest  upon  e\  ideiice  merely 
circumstantial,  it  is  not  error  for  the  eouit  lo  in.-tiiiet  the  jmy  lli:;  if 
there  is  any  otiier  rviisiiinilih'  theory  <.r  '  >  |ii't  liesis  upon  wliii  h  ilie  l^ill- 
ing  may  he  accounted  for,  they  are  to  acipiit.  hi. 

4.  KiU'iarriON  of  instiu  ction  sihstantiau.v   (UVkn.— The  court,  hav- 

ing already  suh^tantially  gi\en  iIk'  iiistriietion  asUed,  net'd  not  ii'j.eat 
its  suhstance  hecausc  dilVeii'iUly  ex|)rcs,-.ed.  /(/. 

5.  I'ltonAiiiUTV   OF    ])i'.Fi'".\i)ANT's    iNXiu  KNCE.  —  A   charge   asked,    wliicli 

asserts  that  if,  from  the  evidence,  there  is  ;i.  prohahilily  of  the  defend- 
ant's innoeenee,  he  is  enlitle<l  to  an  acquittal,  asserts  a  correct  legal 
])roi)osition.  and  its  refusal  is  error.      Winsluw  v.  The  Sldte,  4iJ 

6.  Ri:ASONAni-E  doubt. —  The  judge  defined  a  reasonable  doubt  ^o  be  a 

"douht  ftir  which  some  good  re.xson  arising  from  the  evidence  can  be 
given,"  Jlihl  that,  taken  with  the  context,  there  w;ia  nothing  to  mis- 
lead or  iwrplex  a  juror.     I'cople  v.  Guidici,  45r) 

7.  REASONAnr.r,  nouivr, —  An  instruction  that:  "  while  each  juror  must  be 

satisljet  I  of  the  i  lei  i  mlanl's  guilt  beyond  a  reasonable  douhit,  to  authorize 


V       '      'r-'}         M^'>\ 


* 


INDEX. 


679 


IS  283  and  81 
laiit  with  an 
iiiilcr  the  age 
"  may  nut  be 
66 

[•riminal  stafc- 
it'd  in  a  crim- 
L'lit  Words,  or 
ISO,  are  sufli- 
Id. 

prosoc'ution, 
vith  attcnint- 
l  iinlinvt'ully 

(loi's  nut  IISO 

in<l   that  the 

lis  (.•hac^fil,"' 

aiul  is  vaHd, 

Id. 


v\w  liiid  suf- 

10  was  diiill;;, 

or  Hut  to  do 

%  au7 


ITS.— In  ca«o 
re  tt'stiiiiony 
)iild  aild  tiuit 
ti'stiiiiony  is 
iii.n-csts  tliat 

U'lltiull  siicli 

20 

ry  as  to  llio 
cut  his  con- 
sul 1 1  a  doiilit 
Id. 

NT    lull   THI-: 

ciicc   Miclcly 

Jury  lh:t  if 

lirli  Uic  kill- 

hl. 

court,   liav- 

■d  not  ri|>ciil 

Id. 

■ikcfl,    wldch 
thu  dcl'cnd- 
corrcct  k'n.'il 
4;! 

lubt^o  be  a 

lei  ICC  can  he 

hiiig  to  niis- 

455 

iror  must  be 
to  authorize 


n  oonvictioii.  such  reasonable  doubt,  unless  entertained  by  aUtlui  jurors 
does  not  warrant  an  aaiuittal,"  is  erroneous.    Stitz  v.  State,  48 

8.  Reasonable  uouut  as  to  SANITY.-Wherethe  jury  entertain  a  rcason- 

ablo  doubt  as  to  wlu'ther  the  defendant  is  sane  or  insane,  with  respect 
to  the  imrticular  acts  <-]iarged  against  liini,  they  should  aciiuit.  State 
V.  iN  t,c«/t,  "^  '  .^Q« 

9.  INHTKIX'TION    ASSlMINd    EXISTENCE  OP  DISPUTED  FACTS.— Wlioro  a  fact 

material  to  the  issue,  concerning  the  existence  of  which  there  is  con- 
1    ".'  Vi"^'  *'^'"'''"*''^''  "<  assumed  by  the  court  in  the  charge  to  the  jury 
to  be  hilly  established,  the  province  of  the  jury  is  invaded,  and  preju- 
dicial error  is  shown.     Cliite  v.  State,  57 

10.  Same.— Instructions  which  assume  mnterial  facts  are  erroneous  unless 

given  111  connection  witii  another  which  U'avos  it  to  the  jury  to  ileter- 
miiio  whether  the  assumed  facts  arc  true.     The  State  v.  Jhco.v,  98 

11.  Good  niAii.vcTEU  ok  accisei).- An  instruction  that  if  the  jury  f(mnd 

the  good  character  of  the  accused  established  from  the  evidence,  they 
should  consider  it,  iiiid  allow  it  such  weight  iis  thcv  believed  it  fairly 
entitled  to.  as  tending  to  show  that  men  of  such  ciianicter  wouM  not 
be  likely  to  commit  the  crime  charged,  states  the  law  correctly.  State 
V.  Ormisfini,  jj3 

12.  CllAiiOiNU  on  TASK  IN  DIEFKUENT  COUNTS.— Sections  27:5  and  275  of  the 

code,  abolishing  all  i)rior  fornisof  iileading  in  criminal  actions,  and  pro- 
viding that  ail  indictment  shall  contain  '•  a  plain  and  concise  statement 
of  the  a<'l  constituting  the  crime,  without  uniiecessarv  repetition."  does 
not  prohibit  the  charging  of  the  otfense  in  dillerent' forms  in ditfcrent 
counts.    I'cople  v.  RtKjy,  247 

13.  When  the  constitution  declares  that  "judges  sh.all  not  charge  juries 

with  respect  to  matters  of  fact,  but  n'lay  ,v^//c  the  ^^s7/m^)(// an'd  de- 
clare the  law,"  it  is  violated  by  an  instruction  wliicli  declares  that 
"  the  testimony  in  the  case  .choirs"  certain  facts  iircjiidicial  to  the  de- 
fendant. It  is  for  tin'  jury  exclusively  to  determine  wliat  the  testi- 
mony shows.     I'cDple  V.  Casey,  318 

14.  Certain  instructions  reviewed,  and  held  erroneous.  Id. 

15.  Recommendation  to  mehcy  wiieije  .iuixje  has  no  DiscitinioN.-  Where 

the  law  gives  a  judge  no  discretion  in  passing  sentence  upon  a  con- 
victed prisoner,  it  is  misleading  to  instruct  the  jury  that  iliey  can  recom- 
mend the  piixiiicr  to  the  mercy  of  the  court;  tending  to  cause  tliem 
to  believe  thai  they  ma}'  in  this  manner  reduce  the  de.i;ree  of  tlie  crime 
chargeil,  and  tiie  iiunisliinent  inilicted.    llaekelt  r.  J'eoiilc,  ;330 

16.  IXSTlUCnoN  which  LNDEUTAKES  TO  STATE  EVIDENCE.— When  it  is  Un- 

dertaken to  stall'  all  the  elements  of  an  oireiise  iipun  tlie  evidence 
befori'  the  jury,  tlu'  instruction  siiould  be  so  constructed  as  not  prac- 
ticallv  lo  witlidraw  from  the  jury  com|ieteiit  and  material  evidence. 
Hunirr  V.  The  State,  '  iid'i 

17.  INSTKI'CTION   ON    HVfOTlli:SIS  WHICH  THE   EVH)KNCE   TENDS  TO   I'KOVE. — 

Where  there  is  evidence  ti'iiding  to  show  that  t)ne  indicted  for  larceny 
at  common  law  received  the  money  alleged  to  have  been  stolen,  as  a 
bailee.  Icir  safe  keeping,  it  is  error  in  the  court  to  refuse  to  instruct  the 
jury,  at  the  instance  of  the  defendant,  that  there  could  hi'  no  convic- 
tion, under  the  indictment  as  framed,  for  the  statutory  otreiise.  John- 
.son  V.  The  People,  iloO 

18.  Instruction  in  i.anguaoe  of  the  statute.— The  objection  that  an 

instruction  is  given  in  the  language  of  the  statute  is  untenable.  Kent 
V.  The  People,  406 

19.  Instuuction  diukctino  tiie  jury,  etc.— An  instruction  that  if  the  jury 

shall  believe,  from  the  evidence,  certain  facts,  they  sluaild  thid  thede- 


680 


A.MKHICAN  CRIMINAL  RKPOllTS. 


fendmit  j^iiilty  of  inunlor,  in  crronwins.     It  hIkhiIiI  ilii 
to  liiid  him  i^uilly.     I'mihin  v.  Tlir  J'lDplc, 


•I't  no  inorclluiii 
425 


80.  "Fai-sus  in  UNO,  r.\i,srs  in  omxihus,"  instuiction  ox.— A  cliuiNt!  iiuiu 
inntnictiini.  on  tlu'  trial  of  a  party  upon  a  cliarK''  of  nuirdcr,  who  li.iil 
tt'wtiliod  in  his  own  ix'half,  after  reciting  (•••rtain  faits,  was  to  this 
t'lrt'ct :  "  And  if,  from  ail  sui'li  factsand  ciri'nmstanccs  in  I'vidtMK'c,  thi- 
jury  iH'lifvc  that  he  (tiic  dffcndant)  lias  ti'stilicd  falsely  upon  any  ma- 
terial point  in  issue  in  the  easi',  then  they  have  the  rinhl  to  I'ntirely 
disregard  his  cvidt-nce,  except  so  far  as  it  may  lie  corroiiorated  Ity  uilieV 
rredilile  proofs  or  eireiunstanees  in  evidenee."  Tht^  instruction  wuh 
lield  erroneons,  in  omittiii;;  the  essential  element  that  the  witness  had 
wilfully  iuid  knowingly  sworn  falsely.  Id. 

21.  Ehkuk  wiTiioiT  IMIKJIDU  i;.— An  instnictitm  Kiveii  on  the  trial  of  a 
person  upon  the  char;<eof  murder,  upon  the  law  of  self-defense,  aj^ainst 
the  defendant,  thon<;;h  abstractly  erroneous  may  not  afford  a  >;rnunJ 
for  a  rescrsal  of  a  ,jud;;meut  of  conviction,  where  no  ease  of  self- 
d"l'ense  is  shown  by  the  evidenci'.  Jd. 

88.  An  KlMtoXKols  INSTKICTION  SOT  CTUKn.— Where  an  erroneons  instruc- 
tion was  Kiven,  it  is  no  answer  for  the  |)rosccution  to  sliow  that,  in 
a'lother  part  of  the  cliar;j;e.  another  instruction  was  ;,'iven  in  whicli  the 
law  was  I'orrectly  stateil  by  the  court,  it  would  be  impossible,  in  mh-U 
case,  to  determine  under  which  instruction  the  jurv  acted.  I'luplv  v. 
Bush,  '  .m 

28.  Instiuctionw— Aprr.icAiiiLrrY.— Instructions  to  a  Jury  nm^t  be  appli- 
cable to  the  testimony  introduced  upon  the  trial.  It  is  not  error  to  re- 
fuse to  instruct  upon  a  point  of  law  which  docs  not  arise  in  the  case, 
and  which  would  have  no  reference  to  any  of  the  evidence,  nor  to 
refuse  to  ;;ive  an  instruction  when  the  same  has,  in  substance,  already 
been  j;iven.     Jinidslidir  r.  Sfali',  4!l!( 

24.  It  ts  KiiiioH  FOR  thk  coriiT  to  ixstiuct  the  Jury,  in  a  trial  for  lionii- 

cide.  that,  to  Justify  the  killin;^  as  iu  .self-defense,  the  a(<useil  niust 
have  been  in  "iicIikiI"  danf;er  from  the  decciused.  liiijnnii  r.  The 
Stdti:  '  485 

25.  FKWK.r.  INSTUV( Tloxs  TO  liK  (iivr.N.— Tln>  frec|uent  coiiunission  of  error 

in  insti'uctions  iu  criminal  ca^es  sui^ncsts  the  opinion  tliat  it  wmild 
promote  the  just  administratiou  of  the  law  and  Jidvance  the  interests 
of  the  stale  if  it  wen?  the  praclii'e  in  the  circuit  courts  to  ^ive  fewer 
instructions.  Iu  nuiuy  cases  it  would  be  wise  to  k'^i' no  instructions 
at  all  for  the  state,  and  in  none  is  it  prmlent  to  K've  many.  My  the 
ad<iption  of  such  a  course,  convii'tions  would  be  iis  mnuerous  as  brt'ore, 
and  reversals  would  be  rare.  /(/. 

26.  An    iNSTUrcTloN    which   is  fj;o(Ml  ;is  a   whole  cannot   Ih>   attacked    in 

part.     Kjips  V.  The  Stiife,  517 

27.  An  INSTKIH'TION  ^;iven  in  connection  witli  proper  illustrations  and  pre- 

cautions, that  the  accused's  guilt  might  Ihj  established  by  ciicnnistaii- 
tial  evidence  alone,  is  good.  Id. 

28.  An  rNSTlurcTION  that  testimony  can  (mly  be  rejecte<l  because  it  is  imt 

true,  and  that  wdien  the  evidence  is  irreconcilably  conllicting  that 
which  is  false  nuist  be  rejected,  is  abstractly  correct.  lit. 

29.  Cumulative  instiuctions.— It  is  not  error  to  refuse  instructions  which 

are  merely  cunudative.  1<I. 

80.  PuBMi'  skntimknt  — Ciiaractkr  of  offknsi:. —  The  court  closed  its  in- 
structions to  the  Jury  with  these  words:  "  It  isclaimeil  that  a  violated 
law,  iiy  the  conunissi(ni  of  a  brutal  and  blood-<-uriiling.  cruel  crime, 
lies  in  one  scale  of  the  balance,  and  the  libertv  and  life,  all  that  tiierij 


is  dear  and  valuable  in  life  to  the  citizen,  freights  tlu'  othe 


1 


already  instructed  you  that  the  defindant  is  i)ri'sunu'd  iiuuicent  until 


INDEX. 


681 


()  nioit' tliiiii 
425 

<'ltutKL'  ill  un 

IT,  will)  llMil 

WHS  to  lliis 
viilcncc.  the 
11)11  iiiiy  iiia- 
fo  entirely 
ted  by  other 
riietinii  wiiH 
witness  liml 
Id. 

e  Iriai  of  a 
•use,  a;;ainst 
rd  a  Ki'i'ii'iil 
•use  of  self- 
Jd. 

•ous  iiistnic- 
liow  tliat,  ill 
ill  wliieli  tilt) 
iil)le.  ill  >iir|i 
I.  I'lnplr  I". 
-l.VJ 

ii>t  111'  a|i|ili- 
eiTiir  to  re- 
ill  tlie  case, 
eliee,  nor  to 
nee,  aliea'lv 
4!»!t 

iai  for  lioiiii- 

iiscij  must 

/riim  r.  The 

1(111  of  error 
at  it  would 
he  interests 
u:\yt'  fewer 
histruetioiis 
ly.  lUllie 
IS  as  iii'foic. 

attaciied   in 
517 

)iis  and  pre- 
eiriunistan- 
Jd. 

use  it  is  not 
lietiiiK  that 
Id. 

•tioiis  wliich 
Id. 

•Idsed  its  ill- 
it  a  violated 

•iiel  eriiiie. 

I  that  thero 
,  1  hav(j 
loeeiit  until 


81. 


his  K'lilt  is  made  toaiipear  heyund  a  reasoiial)led(mht,  to  lie  determined 
by  the  rules  j;iveii  voii  in  these  instructions.  No  clisastrous  conao- 
(nieiu  es  to  result  to  tliedrfeiidaiit  as  tlie  results  of  your  verdict,  or  the 
clumofH  of  n  diseonteiiled  populace,  can  properly  liiid  place  for  con- 
Mideration  in  your  dcliheralions ;  hut  the  imperative  and  iiiexorahle 
dt'iiiaiiils  of  lhe<liity  imposed  on  you  are  to  seek  for  the  truth  and 
fearlessly  pursue  it  in  your  verdict."     Hild  that,  as  the  testimony 

tended  to  show  a  wanton  and  cold-hl led  murder,  (here  was  no  error 

in  stating  in  the  lan^uaKe  used  the  claims  of  the  two  parties,  and  that 
it  cannot  he  presiinuMl  that  there  was  no  occasion  for  caiitioiiiii>^  the 
jury  nuainst  the  imjiroper  inlluences  named.    Stutr  r.  Mckinnc!/,    .WH 

PlUCSiMiTloN  oi.'  iNNocKNTi;,— See  opinion  for  instructions  ^Mven  rela- 
tive to  presumption  of  innocence  held  not  to  be  erroneous.  Turner  v. 
Till'  State,  800 

See  Accessory  Hkfore  the  Fact  —  Accessory  After  tue  Fact, 

INTENT. 

In  burnl;n"y.  the  intent  to  bteal  may  bo  inferred  from  ckcuuistances. 
Coin.  V.  SlieUd,  61 

INTOXICATING  LKjUORS. 

1.  Insi-ki'Icik,\(Y   (>!•'  (oMi'i.AiNT.— A  complaint    alleginK  tliat.  at  .a  time 

and  place  named,  theilel'endant  did  "  kn()wiii;;ly  permit  a  certain  tene- 
ment there  situate,  which  was  then  and  there  umler  the  control  of  said  " 
defeiid;iiit,  "  to  he  iinlawriilly  used  for  the  illej^al  salt.'  and  kee|)in}^ 
of  intoxicating;  li(|nt)rs  therein,""  is  insuHieient  umler  the  statute.  Com, 
v.  JliirUii/,  -di'Z 

2.  A  iibysiciiin.  liavinj;  no  iieriiiit  therefor,  cannot,  niitler  the  statute,  law- 

fully furnish  intoxicating'  lii|Uor  as  a  medicine  to  a  [)alieiit.  who  is 
actually  sick,  and  cliarj^e  and  receive  pay  for  the  same.  Stale  c.  Fleiii- 
imj,  3^4 

8.  SlN<fl-E  s.vr.K. —  On  tlv  trial  of  a  complaint  for  keepinj;  and  mautaiiiing 
lit  uscil  for  the  illi';;al  sale  anil  ilii'^Jil  keepinj;-  of  intoxicating 
iidj^e    instinctcd   the   Jury,  that,   if  the   defendant  was 
the  saloin  and  liiaile  eitiier  of  the  two  sales  testified 
11  a  verdict  of  niiilly,      llctit.  erroneous:  as  a  liiiild- 


a  telielile 
lii|Ui)rs,  the  „ 
the  proprietor  ol 
to,  they  must  rctiii 


iiig  cannot  be  said  to  be  "used"  for  the 
liiliiors,  nor  can  the  proprietor  be  said  to  " 
moil  nuisance""  within  the  ineaiiiiig  of  the 
a  single  sale.     Cdiii.  r.  I'tillrrxoii, 

1)i:ki;n1).\nt.  — Evitlenco  of  other  s:des  made  by 


illegal  sale  of  iiitoxit'atiiig 
keep  'ir  maintain  such  coin- 
statute,  on  tile  strength  of 
829 


4.  Otiikk  saij'.s  madi:  isv 


the  tlefeiidaiit  oil  the  same  occasion  as  that  charged  in  the  complaint 
is  atlmissibh'.     Cdin.  r,  Snielnir,  330 

Princii'ai-  and  AdENT —Power  to  make  saee.  etc.— On  the  trial  of 


iiiiil 


loliler  s  ( 


■lerk 


an  III 


ilawful  sale  of  intoxieatinjr  liouors,  tli 


jiitige  iiistructed  the  jury  "  that,  if  the  defeiulaiit  was  not  in  the  room 
willi  the  proprietor,  ami  the  door  was  locked  between  him  and  the 
liroprietor,  ,.iid  tlu'  ilcleiidant  took  orders  for  intoxicaling  liiiuors  and 
delivered  tlie  lii|iior  to  the  party  ordering  it.  and  took  jiay  therefor,  it 
was  a  sale  by  tiie  deleiidant.""  Held,  not  erroneous;  that  it  was  lor 
the  tlefendaiit  to  rei|iit'st  an  instruction  based  upon  the  theory  that  he 
was  acting  only  as  a  subordinate,  witlu^ut  power  to  make  a  sale  or  to 
determine  whether  a  sale  should  be  made.  Id. 

I).  (Iril.TV  KN()\vi.i;i)iiE  is  not  essential  to  theolfense  of  unlav.fiilly  selling 
intoxicating  liiiuors,  and  whoever  lias  a  license,  whether  he  conducts 
the  business  personally  or  by  liis  agt'iit.  is  bound  at  his  own  peril  to 
keel)  within  the  terms'  of  it."^    Coin.  r.  Uri(j,  323 


eS2  AMERICAN  CRIMINAL  REPORTS. 

7.  Bkliep  that  minor  is  an  adult.— Where  the  seller  believes,  with  good 

reason,  at  tlie  time  of  sale,  that  the  minor  is  an  adult,  ho  is  not  guilty 
of  tlie  statutory  otfi'iise.     Hunter  v.  The  State,  33(5 

8.  Same.—  The  defendant  has  aright  to  show  such  matters  in  defense,  and 

the  trial  court  lias  no  right  to  assume  and  chargi^  tlie  jury  that  the 
offense  is  complete  without  regard  to  such  evidence.  Jd. 

JEOPARDY. 


.    WHERi:  DEl'KNDANT  MOVES  FOR  AND  PROCURES  NEW  TRIAL  ON  ACCOINT  OP 

DEI'IXTIV!;  INFORMATION. —  Wlicre  an  accused  person  is  convicted,  and 
he  move  f.i-  a  new  trial  upon  varinns  grounds,  airiong  whicli  are 
tlioso:  "(0)  Tlu'  information  does  not  state  suUicient  facts  to  constitute 
an  offense;  (7)  the  information  anil  the  evidence  do  not  show  or  inuve 
any  oircnsc  under  the  laws  of  Kansas:"  and  tlie  court  grants  (lie  new 
trial  as  prayed  for  in  the  defendant's  motion;  and  the  court  iilso  linds 
that  the  information '•  did  not  state  facts  suflicit-nt  to  constitiiii' llie 
olfeiisc  of  which  the  dcfeniiant  is  found  guilty,"  ami  orders  that  a 
new  information  l)e  filed  by  llic;  comity  attorney,  wiiidi  isdoni'.  the 
defendant,  by  moving  for  and  obtaining  sucli  new  trial,  has  waived 
liis  right  to  plead  foiiner  Jeojiardy.      State  i\  Hart,  (JO 

!.  Ei'FECT  OF  (iKANTiNO  NEW  TRiAt-.— When  a  new  trial  is  granted  on  the 
motion  of  tlie  accuscil,  the  granting  thereof  places  iiim  in  the  same 
position  iis  if  no  trial  had  lieen  liad.  /■(/. 

5.  Entry  of  nolle  pros.— After  new  trial  has  been  granted  on  motion 
of  the  accused,  the  attorney  for  the  state,  with  the  t'onseiit  of  the 
court,  may  enter  a  iinlle  iirosciiiii  witliout  prejudice  to  a  future  |irose- 
cution.  Id, 

[.  Motion  in  auuest  of  .linoMENT.— Tint  same  result  would  follow  if, 
instead  of  a  motion  for  a  new  trial  lieing  madi'and  j;raMte(l  and  a  //(<//(! 
jjw.scfy/n' entered,  a  motion  in  arrest  of  Judgment  were  made  n|pon  the 
ground  tliat  the  information  diil  not  state  a  public  olfeiisi'.  /(/. 

).  Defi'A'sk  df  oNrE  IN  .lEoi'AKDY.— Defi'iidant  was  placed  on  trial  lor 
murder,  and  one  witness  was  examine<l.  Then  it  was  discovered  that 
none  of  the  witnesses  had  been  examined  before  the  n rand  J 11  rv,  and 
that  this  liodv  had  returned  the  iiiilictment  on  the  minutes  oi'  the  com- 
mittin;;  Tna:4istr,ite.  The  district  at toi-ney  asked  leave  to  introduce  the 
evidence  of  the  witnesM's  a.nainst  the  ilefendanl  or  to  compel  (leteiid- 
ant  to  allow  the  I'aiise  to  be  continued,  whicii  motion  was  sustained  liy 
theconrt :  thei'eiipi>ii  the  defendant  moved  the  conrt  to  direei  the  jury 
to  return  a  venlict  of  "  not  ;;uilty."'  'I'liis  beimj  o\eirnlec|  heidiititi- 
ued  the  case,  and  the  Jury  \\c'i(M|isehar;;ed.  Ilihl.  that  cleleiidaiii  had 
not  been  put  in  Jeopardy  on  the  lir.•^t  aliortive  trial,  and  that  he  lould 
be  trii'tl  a  seconil  timi'.     Slutr  r.  J'tn;.ir.  ;;.li) 

3.  KlLl.lMl  UF  TWO  I'EKSDNS  liV  Till".  SAMi;  ACT. —  The  murder  of  two  |Mr- 
sons  constitutes  two  separate  crimes,  for  each  of  wliieli  a  defeiidant  is 
liable  to  a  M'p;irate  piosecnlion  ami  trial,  though  the  kllllii.i;  be  by  the 
same  act;  and  a  conviction  or  ai'ipiittal  in  one  case  does  not  bar  a 
jirosecutioii  in  the  othi'r  on  the  jdea  of  once  in  jeopardy.  I'cuitlr  v. 
Majors,  48tt 

JURISDICTION. 

The  courts  of  Maine  have  no  jm'isdiction  in  a  cas(>  of  murder  or  man- 
slanuhlei-  coiimiitted  within  l''oi't  I'ophain.  whii'h  is  near  the  mouth  of 
the  Keiniebee  river.  And  when  a  mortal  blow  is  strui'k  or  woinul 
inllicteil  in  a.  birt  of  the  United  States,  and  the  pei'son  so  striuk  or 
woiindeil  dies  out  of  the  fort,  the  crime  cannot  be  regarded  as  com- 
mitted where  the  person  liies.     Staler.  Ac////,  Slllt 


INDEX. 


683 


JURORS. 


1.  Challenof,  for  cause—  Denial  —  Error  \vithout  prejudice.— The 

di'iiial  of  ;i  cliallengo  for  cause  of  a  juror,  who  stated,  in  order  to 
escajJC'  Ht^rviiif^.  tliat  he  couhl  not  overcome  his  l)eHef  in  the  prisoner's 
f;uilt,  which  juror  was  suhseijuentiy  peremptorily  ciuillenficd,  is,  when 
it  appears  that  tlie  prisoner,  upon  K<'iwg  to  trial,  had  exhausted  but 
eijj;lit  of  Ills  lifteen  peremptory  diallenges,  an  error  without  prejudice, 
and  cannot  be  fatal  to  the  judgment.     Miitich  r.  Pvople,  20 

2.  CiiAU.KNfir.  — Kkmote  intkin'.st  as  to  a((1>s!>ky. —  It  is  proper  to  sus- 

tain a  challenge  to  a  juror  wlio  has  stated  in  his  evidence  an  opinion 
as  to  guilt  or  innocence  of  the  prisoner  obtained  directly  from  wit- 
nesses. ;uid  who  has  l»nsiness  relations  with  a  party  indicted  jointly 
witii  defendant  foi'  the  crinu;.  Id, 

8.  Oath— Essi'.NTiAl.s. — Sime  there  is  in  Colorado  no  statutory  form  of 
juror's  oath,  tlie  coinnion  law  form  is  used:  hut  any  form  is  proper 
that  requires  the  juror  to  hind  himself  as  to  liis  essential  duties.       Id. 

4.  Poi.T.iNO  .tiHY. —  The  statuli!  secures  to  tiie  defendant,  in  a  criminal 

case,  a  right  to  poll  tiie  jury  (Code,  section  4it".?0),  in  order  to  a.scertain 
wlu'thc!-  the  verdict  is  unanimous:  Imt.  in  pulling  them,  ini|uirv  can- 
not he  made  into  llieir  several  reasons  or  m(,)tives  for  assenting  to  the 
verilict,     Wim^luw  v.  The  State,  43 

5.  Statutory  form  of  oath  should   imc   i'oli.owkd.— The  form  of  the 

juror's  oath,  as  in-cscrihcd  l)y  st:itnte.  should  he  follmved  as  far  as  pos- 
sible, but  the  substance  of  it  is  indispcnsal)l('.     Stiile  v.  AikjcIo,         02 

C.  Court  to  dkoidk  as  to  thic  nkcessitv  of  vknirf.— The  question  of 
the  lU'cessily  of  summoning  an  open  renire  when  the  regular  panel 
of  jurors  is  exhausted  rests  in  the  discretion  of  the  judge,  and  is  not 
left  to  the  judgment  of  the  prisoner.  Id. 

7.  Opinion  hasi-.d  on  rumok. —  It  <  annot  be  said  that  a  juror  has  formed 

an  uni|iialili('d  opinion  whin  be  states  that  the  o]iitii<in  wliiih  lie  has 
forme(l  is  based  !i)ion  rumor,  and  not  upon  statements  made  !)y  any  of 
the  persons  i-laiming  to  be  witnesses,  and  that  he  still  thinks  he  can 
render  a  true  verdict.     State  i:  (hniisloii,  113 

8.  Imt'RKssion  of  PRIsonkh's  (iUir.T.   -  a  mere  iini>ression  of  a  iiri->oner'a 

guilt  on  the  part  of  nric  called  as  a  jnrur  is  not  suliiciiMit  to  disqualify 
him.  It  must  appear  that  be  lias  formed  a  lixi'd  opinion:  and  (;ues- 
tions  asktMl  in  an  examination  on  niir  ilire  nuist  tend  to  elicit  informa- 
tion on  the  latter  point.     Travisn  i:  Tltv  Com.,  256 

9.  \Viii;n  iii;i,ATioNsiiip  uf  defendant  is  unicnown   to  .iuror.— a  mo- 

tion for  a  new  trial  was  nuide  on  the  groimd  that  one  of  the  jurors  was 
a  second  cousin  of  the  pei'son  allege<l  (o  have  been  munlered,  and  that 
this  fact  was  uiil  known  to  the  defendant  or  his  counsel  until  alter  tiie 
verdict  was  rendered.  It  also  aitjieared  that  this  relationslii(>  was  un- 
known to  the  jurur  until  after  the  verdict  was  rendered,  and  that  he 
hail  iii'ver  seen  the  nuu'dered  woman  nor  hi'ard  of  her  except  in  ci)n- 
nection  with  the  nuu<ler.  Jlrld,  that  there  \\as  no  error  in  refusing , a 
new  trial.  Id. 

10.  When  roNsiii;vn(ius  scituPi.F.s  of  .iurou   is  causk  of  c  iiaij.k.N'U.. — 

Blurder  is  not  necessarily  jiunishalile  by  death.  I)ut  as  death  may  lie  the 
piniishmeiU.  under  the  provision  of  the  statute,  any  person  ••enter- 
taining such  conscientious  opinions  as  would  preclude  his  tiuding  the 
deb'U.laut  guilty,  nuist  neither  be  permitted  nor  cornpelk'd  to  serve  as 
a  jiuor."     raiple  v.  Majors,  ISO:  Brad.sliair  r.  State,  4i)9 

11.  RlllIIT  i)F   Pl'UI.MITORY  CHMXl-Ndl';   UNTIL  ,11  1!V    IS    ArCI.I'TKi).— Where 

the  prosecution  declined  to  exercise  the  riiiht  of  |)eremptory  ciiallenge 
and  passed  the  jury,  and  the  defemlaiit  then  perempturily  challenged 
a  juror,  the  action  of  the  court  in  then  pei'iniuing  the  pro.secutiou  to 


084 


A^IERICAN  CRIMINAL  REPORTS. 


l)oroin]itorily  chiilU'iige  a  jnror,  ag-'iinst  the  obj(>ction  of  tlio  dofciiso, 
duos  not  ciill  for  u  reversal  of  the  judgment,  iH'inj;  a  mere  irreguliirity 
at  most,  wliieh  did  not  affect  any  substantial  right  of  tlie  defiiulatit. 

Id 

12.  Qualifications  of  juror. —  Mncrh  rests  in  the  discretion  of  tlie  trial 

court  as  to  what  iiucstioiis  may  or  may  not  he  answered  liy  a  jjcrsim 

called  as  a  jnr<n-.  toucliiiig  iiis  (inalitications  to  serve,  hut  great  laliUnle 

ought  to  be  allowed.     Ajjjw  i'.  'J'fn'  Htute,  417 


JURY. 

1.  PoT,l,lN(t  Till';  .lURY. —  In  jiolling  the  jury  after  viTdict.  the  defendant  is 

entitic<l  to  no  more  than  a  categorical  answer  from  each  juror  to  the 
question:  "Is  that  your  vcnli<l?''  In  tiiis  case  the  accused  was 
charged  as  a  |)rincipal.  The  vei-dict,  aflirmed  hy  each  jnror  on  heing 
jKilled.  found  him  "guilty  of  murder  in  the  first  di'gree  as  charged  in 
the  indictment."  The  defense  |)i-o|)osed  to  ask  each  juror  if  he  inteiide(l 
to  fin<l  the  accused  guilty  as  a  prineijial  or  as  an  accoiii|ilice.  HfUl, 
that  the  court  jiroperly  refused  to  permit  such  examination  of  tiic 
jiu'ors.     lU'(tn  V.  The  Sintc,  477 

2.  Chaixi:n<;i',  to  tmf,  array. — Article  (W4  of  the  Code  of  Criminal  IVo- 

cedure  enumerates  the  only  grounds  upon  whii'h  a  challenge  to  the 
array  of  jurors  can  he  predicated.  It  appears  in  this  (  n^e  tiiat  the  de- 
fense refused  to  ai'cept  the  proposition  of  the  district  ;ittorney  to  e.Ncnse 
the  jurors  suimnoned  hy  the  olpjeetionahh' ollicer,  and  lliat  he  did  not 
exhaust  his  pereniptor\  I'liidlenges  in  the  formation  of  the  jury.  Hill. 
that  for  such  additional  i-e;i-ons.  tiie  trial  court  properly  oveiiided  i!:e 
defendant's  challenge  to  the  array.  hi. 

8.  MlSCONOrcT  OK  .11  RY. —  Where  the  llial  eouit  hears  e\  ideuee  U|io::  ;i 
tiuestion  of  misconduct  of  the  jury,  its  decision  on  that  i|iie>tion  will 
not  he  disturbed  liy  the  supreme  conn  on  what  may  seem  to  he  the 
weight  of  the  e\  ideiice.      h'pps  r.  'I'la-  Stifle,  .'")17 

4.  Jury  drawn  r.Kroui-:  takimi  kffkit  of  law  niANoiNd  distru t.— A 

jury  w;is  regularly  drawn  and  summcned  to  attend  the  l-'eliruary. 
IHi^o,  term  of  the  Hulli'r  county  di>t  rid  court.  Tlial  cnmily  wa>  then 
a  part  of  the  thirteenth  judieinl  district,  nud  the  reguhu'  Iitmi  tixed 
for  the  third  Tuesday  of  I''eliruarv.  Thereal'ler,  an<l  on  February  li, 
lbs;(,  a  law  took  elfect  cicating  the  eighteeinii  judicial  di,-.tr:ct,  and 
tissigniiig  Mulier  county  to  that  district.  The  act  iii.iting  I  he  eii;iit- 
eenth  district  piovided.  among  olliei-  things,  that  all  pro^ce  liM'.;s  of 
every  kind  and  character,  and  all  procivses  of  every  kind  and  ejuir- 
ncler.  pending  in  any  of  the  courts  of  the  countii's  named  in  the  law, 
should  stand,  be  returnable,  and  triable  at  the  first  tei'ui  of  the  court 
for  said  conidies,  the  same  as  if  the  change  thi'rein  contemplated  had 
not  l)een  maile.  Ilihl,  that  a  challenge  to  the  ari'ay  was  properly  over- 
ruled.    Sidli'  r.  MrKlinii'iJ,  aiiS 

5.  Al)Mo\rrioN    to    .HRY   ISKFoRF    SKI'ARATINO    NFKD   not   RK   RKI'KATKD.— 

It  is  not  essential  that  the  .admonition  to  be  gixeu  to  tiie  jury  at  the 
time  of  each  .ailjonrnmeiit  be  in  the  very  language  of  the  statute;  it  is 
enough  tiiat  the  duty  of  the  jin\v  is  fully  and  cleai'iy  diselo-ed  to  llieni 
bythec'ourt:  and  an  admonition  not  to  converse  "  in  re;jaid  to  (his 
casi'"  is,  wiicn  no  objection  is  ma<le  at  the  time,  snllieient,  allhougli 
the  language  of  the  statute  is  "on  anv  subject  coiniecletl  with  the 
trial.'  '  ](l. 

6.  Pkrmittinu  .ury  to  sfraratf.— The c<nirt  may  permit  a  separation  of 

tli('  jury  after  the  instrnclioiis,  during  the  argimu'uts  of  ciaiusel.  and 
at  any  time  before  they  jinally  retire  under  I'haige  of  their  baililf  (nv 
delib.ratitin.  /(/. 

7.  Jtiry  may  assume  tliat  property  has  a  vahn-.     Millrr  i:  Thv  Stati',      l".") 
Right  of  del'eiiilant  to  have  the  jury  polled,  see  1'ractkf.,  ;1. 


INDEX. 


685 


LARCENY. 


1.  Larceny  from  person  and  robliery  distinguished,  and  motion  in  arrest  of 

judgment,  on  verdict  of  guiltj^  of  larceny  from  person,  held  properly 
overruled.     State  v.  Graff,  346 

2.  An  indictment  alleging  the  larceny  from  the  person  of  "divers  promis- 

sory notes,"  and  of  "divers  coins  of  tlie  United  States  current  as  numey 
ui  said  commonwealth,"  with  inoper  averments  of  value,  ownership 
and  possession,  is  suflicient.     Com.  v.  Collins,  ;i4"t 

3.  When  the  complant  contains  several  counts,  each  charging  a  distinct  lar- 

ceny of  the  projjerty  of  a  <liirerent  person,  it  is  no  ground  for  a  motion 
to  dismiss  the  complaint,  on  api)eal  in  the  suiierior  court,  that  the  record 
of  t'le  lower  court  shows  that,  on  the  complaint  being  read  to  the  de- 
fendant, she  was  asked  whether  she  was  guilty  or  not  guilty  of  the 
"offense"  charged;  that  she  pleaded  not  guilty,  and  was  tried  and 
convicted  "  of  the  offense  aforesaid."    Com.  v.  Holmes,  348 

4.  Indictmknt  kok  statltoky  offense  —  Its  RF.QUisiTE. —  An  indictment 

for  a  mere  statutory  olfeiise  must  be  framed  upon  the  statute,  and 
tiiat  fact  Muist  <listinctly  api)ear  upon  the  face  of  the  indictment. 
That  it  nuiy  so  apjiear,  the  pleader  nmst  either  charge  the  offense  in  the 
language  of  the  statute  i>r  specifically  set  forth  the  facts  which  consti- 
tute it.    Joliiison  V.  The  People,  350 

5.  Where  a  statute  creates  a  new  offense,  but  does  not  describe  the  act  or 

acts  which  constitute  it,  the  pleader  must  set  them  forth  specifically. 

Id. 

6.  Lauckny  at  common  law  —  Possession  in  the  accused.—  There  are 

thret'  classes  of  cases  in  which  convictions  for  larceny  at  common  law 
are  suhtaiued  when  the  apparent  possession  is  in  the  accused:  First, 
where  tlie  aci-used  has  ?nere  custody  ol  the  ])roperty,  a.s  distinguished 
from  possession  las  in  tiie  case  of  servants  antl  the  like,  whose  duties, 
from  time  to  time,  re(|uire  tiiem  to  handle,  occujiy  or  use  it,  or  to  sell 
or  disi)ose  of  it  to  others);  second,  wiiere  he  obtains  the  custody  and 
apparent  poss«'ssion  by  means  of  fraud,  or  with  a  i)resent  pur|M)se  to 
steal  tile  property;  and,  third,  when  one  liaviug  acquired  possession  liy 
a  valid  eontraet  of  bailment,  which  is  subse(|uentlj"  terniiniited  by 
some  tortious  act  of  tlie  bailee  or  otiierwise,  whereby  the  possession 
reverts  to  tlie  owner,  leaving  the  custody  merely  in  the  former,  and 
the  bailee,  while  being  thus  a  mere  custodian,  feloniously  converts  the 
property  to  his  own  use.  Id. 

7.  Lauceny  as  haii.ee  indeu  the  statute, —  As  a  bailee  is  one  who  has 

the  possession  and  a  iiualitied  property  in  the  goods  or  other  property, 
under  a  contract  with  the  owner,  either  exia-ess  or  implied,  he  cannot 
comiiut  a  larceny  of  the  bailment  so  long  as  the  contract  under  which 
he  holds  the  same  is  subsisting;  but  when  the  contract  by  any  means 
terminates,  he  ceases  to  be  a  bailee,  and  the  possession  reverts  to  the 
owner,  altliough  the  bare  custody  still  remain  with  the  bailee.  By  the 
very  terms  of  the  statute,  a  biulee  in  possession  alone  can  commit 
the  statutory  olfi'iise,  for  there  can  be  no  such  thing  as  a  bailee  out  of 
possession.  Id, 

8.  Instkuc'Tion  on  HYPirniEsis  which  the  evidence  tends  to  puove.— 

Where  there  is  evidence  tending  to  show  that  one  indicted  for  larceny 
at  common  law  received  the  money  alleged  to  have  been  stolen,  as  a 
baik'e,  fur  sale  keejang,  it  is  error  in  the  court  to  refuse  to  instruct  the 
jury,  at  the  instance  o\'  the  ilefeiidaiit,  that  there  could  be  no  coiivii- 
tioii,  under  the  indictment  as  framed,  for  the  statutory  offei.se.     Id. 

9.  KliEiTOMANlA,  which  is  an  uncontrollable  propensity  to  steal,  is  now  a 

well  ri'cogni/.ed  species  of  insanity,  and,  if  clearly  established  by  the 
evidence,  constitutes  a  complelt'  defense  in  a  trial  for  theft.  Harris  v. 
The  Stale,  357 


686 


AMERICAN  CRIMINAL  REi'OUTS. 


ii". 


10.  Expert— Non-professional  testimony.— Export  or  inodicaltestimony 

is  not  the  only  species  of  proof  competent  to  estal/lisli  tlu;  defense  of 
kleptomania.  The  opinion  of  a  non-professional  witness,  biised  on  his 
personal  observation  of  the  symptoms  of  kleptomania,  is  udniissilileas 
evidence  in  connection  with  his  testimony  to  the  symptomatic  facts  on 
which  his  op'inion  rests.  j(J_ 

11.  "One  book,  of  the  value  of  .f6,  the  jiersonal  projKjrty  of  Levi  W. 

Walker,"  is  a  (l<'scripti<m  sufficiently  coccurate  in  an  iudictmcnt  charg- 
iiif?  larceny.     Turner  v.  llic  State,  ^qo 

Vi.  Fakuicatkd  testimony- iMl'KACiniEST.- Where  the  defendant  testi- 
fies at  length,  in  the  effort  to  show  the  proper  and  lawful  manner  of  liis 
having  certain  jiroperty.  it  is  competent  for  the  state  to  show  that  liis 
statements  were  false  and  liis  theory  witliout  foundatit>u.  Id, 

18.  When  two  crimes  are  clearly  connected,  one  may  be  proved  by  estab- 
lishing the  other.  /(/_ 

14.  See  opinion  for  instructions  given  relative  to  presumption  of  innocence 

held  not  to  be  erroneous.  Jd. 

15.  Money  or  property  found  or  picked  up— Intent.— A  conviction  of 

larceny  cannot  be  had  against  a  jierson  who  liiids  or  i)icks  ui)  nioiiev 
which  has  been  lost  or  dropped  by  the  owner,  imless  there  was  a  feli)- 
nious  intent  contemitoranetnis  with  the  finding  or  picking;  up,  tlniiif;h 
it  is  not  necessary  that  sucli  intent  should  be  estal)lislit(l  by  punitive 
testimony;  but.  if  the  defendant  took  tlu  money  from  tiie  person  of 
the  owner,  or  from  any  place  in  wliich  he  had  put  it,  such  taking  being 
tortious,  a  felonious  intent  subse<|uently  conceived  and  executed  would 
constitute  larceny.     Weaver  v.  The  State,  306 


LIBEL. 

1.  Newspaper  article. —  In  order  that  an  article  i)ublished  in  a  news- 
paper should  be  held  to  he  libelous  as  to  a  particular  perse  m.  it  is  neces- 
sary that  the  langna^re  of  the  article  should  be  such  tliat  ]»  isdiis  seeing 
it  and  rciuiing  it  should,  in  the  light  of  surrounding  circinMstaii'cs, 
be  able  to  understand  that  it  referred  to  such  person.  Sliitr  c.  .!/<(//- 
berry,  3(i9 

i.  Accusing  editor  of  drunkenness.— The  following  words,  puhlislieJ 
in  a  newspajier,  if  false  and  malicious,  as  thej-  are  alleged  to  lie,  are, 
in  Kansas,  and  under  the  circumstances  of  this  case,  lihelons,  to  wit: 
'"i'lie  t'ditor  of  the  Chronicle  luus  been  intoxicated  on  several  oira- 
sions,  an<l  that,  too,  after  he  was  elected  to  the  legislature  as  the  cliaiii- 
pion  of  prohibition."  /(/. 

B.  Evidence  of  intoxication  — Of'imon  of  witness.— Where  the  defend- 
ant is  charged  with  having  ]iublisli(Ml  that  the  la'osecuting  witness  had 
"been  intoxicated  on  several  occasions,"  he  may  prove,  by  witnesses 
ac(|uainted  with  such  prosecuting  witness,  that  they  had  seen  hiia 
"acting  iis  though  he  was  intoxicated."  hi. 

MALICE. 

Under  the  statute  of  Colorado  the  ingre(lient  of  malice  necessary  to  con- 
stitute the  crime  of  murder  is  a  (pn'stion  of  fact  to  be  found  by  the 
jury.      Kent  v.  J'he  I'mple,  ■100 


MALICIOUS  THKSI'ASS  Ul'ON  HEAL  ESTA'I'i:. 

1.  Mami'Iois  tuksi-ass  ii'd.N  iti'.AL  ESTATE. —  In  a  prosecution  for  niali- 
cii)Us  liespiuss  fur  injury  to  real  estate,  the  title  to  the  real  estate  must 
be  proved  to  be  in  tlic  person  named  in  the  indictment.  Uttylies  r. 
State,  873 


INDEX. 


687 


2.  Not  proper  to  try  question  of  title.— The  machinery  of  the  crimi- 
nal law  cannot  be  invoked  to  redress  merely  private  grievances,  and 
while  a  civil  action  of  trespass  may  be  maintained  in  a  class  of  cases 
to  determine  a  (juestion  of  title,  a  prosecution  for  malicious  trespass  is 
not  proper  for  any  such  purix)se.  Jd, 


MANSLAUGHTER. 

1,  Civil  wrong. —  The  mere  fact  of  a  civil  wrong  committed  by  one  per- 

son against  another  ouf^ht  not  to  be  used  iw  an  incident  which  is  a  n('<  - 
e.ssary  step  in  a  criminal  <ase,  apart  from  the  question  of  crimiiud 
negligence.    Reg.  v.  Franklin,  o7"i 

2,  Neoligunt  or  wanton  act.— Therefore  the  mere  fact  of  a  person 

wrongfully  taking  up  a  box  from  a  refreshment  stall  on  a  sea  pier  and 
wantonly  throwing  it  int(»  the  sea,  and  thereby  unintentionally  caus- 
ing the  death  of  another  bathing  in  the  sea,  is  not  per  se,  and  apart 
from  the  (piestion  of  negligence,  sufficient  to  constitute  the  offense  of 
manslaughter.  Id. 

8.  Death  of  child  as  the  result  of  cruelty  and  want  of  proper 
FOOD. —  Death  ensuing  in  conseijuence  of  the  wilful  omission  of  a  duty 
is  nuirder;  deatli  ensuing  in  consecjuence  of  the  negligent  omission  of 
a  iluty  is  manslaughter.  Tiiereforfc,  where  the  death  of  a  child  re- 
sulted from  cruelty  an<l  want  of  proper  food  and  clothing,  the  i)erson 
whose  duty  it  was  to  maintain  and  care  for  it,  and  whose  conduct  re- 
sulted in  its  death,  was  guilty  of  murder,  if  the  acts  were  wilfully 
done;  and  of  manslaughter,  if  they  were  negligently  dime,  without 
malice.     LeicU  c.  'The  Slate,  381 

4.  Death   from  commission  of  unlawful  act.— If  the  death  results 

from  the  (lommission  of  an  unlawful  act,  which,  in  its  coTisecjuences, 
naturally  tends  to  destroy  the  life  of  a  human  being,  although  the 
killing  itself  be  not  intended,  the  offense  is  umrder.  lit, 

5.  Declarations  of  acciskd.— The  sayings  of  the  defendant,  made  by 

her  <hning  the  continuance  of  the  cruel  treatment,  were  not  admissible 
on  her  own  behalf,  when  offered  by  her  to  account  for  scars  and  other 
marks  of  violence  and  severe  usage  appearing  upon  the  person  of  the 
deceased.  Id. 

6.  Justifiable   homicide  —  Statute   construed  —  Evidence  —  Instruc- 

tion.—  Article  '}{\1  of  the  Penal  Code  reads  as  follows:  "Homicide 
is  justifiable  when  committed  by  the  husband  ujion  the  i)erson  of  any 
on<!  taken  in  the  act  of  adultery  with  the  wife,  provided  the  killing 
take  place  before  the  parties  to  the  act  of  atlulti'ry  have  separated. 
Held,  that  a  proper  construction  of  the  term  "  taken  in  the  act  of 
adultery,"  as  used  in  the  statute,  does  not  mean  that,  in  order  to  avail 
himself  of  the  protection  of  tiie  statute,  thi>  husband  should  be  an 
actual  eye-witness  to  the  physical  act  i»f  coition  between  his  wife  and 
lur  paramour,     riice  v.  The  Sliile,  tJ85 

7.  The  kkasonamlenkss  of  api'icauances  which  will  justify  an  act 

otherwise  (KIMINal. — "  If  a  i)eisoii  lalioring  undi'r  a  mistake  as  to  the 
particular  fact  shall  do  an  act  which  would  otherwise  be  criminal,  he 
IS  guilty  of  no  offense,  ja'ovided  it  be  such  mistake  as  does  not  arise 
from  want  of  proptn-  care  on  bis  part."  In  otlu  r  wonis.  a  person  may 
always  act  upon  reasonable  ap[iearan('es,  anil  his  guilt  (le|)ends  open 
the  reasonableness  of  the  ai)[>earaiicos,  judged  of  from  his  own  stand- 
jtoint.  I'l. 

8.  ("HAKtiE  OF  THE  COURT. —  The  gist  of  the  issue  under  the  eviilciuc  in 

this  case  wiis  wlu'ther<tr  not  the  facts  tended  to  show  that  the  parties 
were  "taken  in  the  act  of  adultery."  Such  being  the  case,  it  wiia 
poijcrly  a  part  of  the  law  of  the  cas(>  that  the  jury  should  be  correctly 
mstrucied  as  to  the  meaning  of  tlu"  expression  "  taken  in  the  act  of 
adultery."  Id. 


688 


AMERICAN  CRIMINAL  REPORTS. 


9.  CoNSTUurTiON  — Instruction.— The  phnuse,  "  before  the  parties  to  the 
act  of  adultery  have  se|)arate(l,"  as  used  in  the  statute,  couteiiipliitea 
only  that  the  i>artie.s  are  still  toRether  in  company  with  each  otlier, 
after  the  act,  when  the  homicide  is  committed.  /</. 

10.  A   rilYSltlAN   WHO  I'ltKSCKlUKS    FOR    A    PEKSON    WITH    FOOUIARDY   VUE- 

SlMl'TION   MAY   1!K  (iLII.TY  OK   MANSI,Ar(iHTi;U.— Where  a  lUTSOd  ))rac- 

ticiiiK  publicly  as  a  physician  is  called  upon  to  atten<l  a  sick  woman, 
and  prescriiies.  with  >;ross  recklessness,  a  course  of  treatment  which 
causes  death,  he  may  l»e  found  >::uilty  of  manslaughter,  althoU{:;li  he 
acted  in  the  premises  with  hor  consent,  and  with  no  evil  intent.  Cow. 
r.  Pierce,  391 

11.  InDKTSIKNT  NKI'.n   NOT    AI,I,EOE   THAT    ACCUSKD    KNEW  OF    THE  DEADLY 

TENDENCY  OF  THE  sriJSTANCE.—  An  indictment  charging  manslauf^hter, 
*>v  causing  the  clotiies  of  tiio  person  killed  to  Ixs  saturated  with  kero- 
sene, need  not  state  that  the  accused  knew  of  the  deadly  or  dangerous 
tendency  of  the  kerosene.  Jd, 

13.  The  standard  by  which  a  physician  is  to  be  tried.— In  the  trial 

of  an  '. .  lictinent  charging  manslaughter,  tlu.'re  was  evidence  to  the 
offeci  iiuitlht  defendant,  who  practiceil  as  a  physician,  on  iieing  called 
toatt''!'  '.  .i.-i  I.  woman,  prescrilied  an<l  directcMl  that  her  clothes  tJniuld 
be  kept  f-uturated  with  kerosene,  and  that  this  jn't'iiliar  coiu'se  of  treat- 
ment caused  iier  death.  The  jury  were  instructed  that  the  defendant 
was  "to  Ih'  tried  by  no  other  or  higher  standard  of  skill  or  learning 
than  that  which  he  necessarily  assumed  in  treating  her;  that  is,  that 
lie  was  able  to  do  so  without  gross  recklessness  or  luifounded  presump- 
tion in  undertaking  it;  "  and  it  w:is  held  that  the  instruction  was  s\if- 
fi'  'ently  favorable  to  the  defendant.  Jd. 

18.  Absence  of  .r-ror  by  permission  of  ((jirt.  — "Where,  in  pursuance  of 
an  indictment  for  murder,  a  verdict  for  manslaughter  was  reiuh'rcil 
an<l  sentence  inipos(>d  tlierefor,  and  it  appeared  that  <lin'ing  an  ad- 
journmi'Ut  of  the  trial  one  of  tiie  Jurors  was  absent  for  two  days  in 
the  custody  of  a  sworn  otlicer,  and  by  permission  of  the  court,  under 
suitable  instructions,  siu'ii  separation  of  the  jiuy  is  not  sutlicieiit 
ground  for  reversal  t)f  the  Judgment.    Mvsn  v.  Com.,  !>97 

14.  Rule  otherwise  i)n  conviction  for  a  capital  offense.- That  the 

rule  is  otherwise  where  the  conviction  is  for  a  capital  olfense;  and  the 
conunonwealth  must  then  show  atUrmatively  that  no  improper  in- 
fluence operated  on  the  mind  of  the  Juror  during  his  absence.  Id, 

15.  Instruction  in  la.nouaue  of  the  statute. —  The    objection  that    an 

instru<'tioii  is  given  in  the  laiig\iage  of  the  statute  is  luitenable.  luiit 
i\  The  J'eople,  -KHi 

16.  Mauce. —  Under  the  statute  the  ingredient  of  malice  necessary  to  con- 

stitute the  crime  of  nuu'der  is  a  (juestion  of  fact  to  be  found  by  the 
jury.  Jd. 

17.  Same  — Evidence  — Reasonable  doubt.— Tlie  burden  of  i)roof  rests 

ujxju  the  state  to  prove  beyond  a  reasonable  doubt  the  existence  of  all 
the  uuiterial  elements  necessary  to  constitute  the  crime  of  murder  as 
deliiUMl  l)y  the  statute.  Jd. 

18.  Statutory  construction  —  Malice  aforethouoht.— Under  section 

;5t)  of  the  statute,  to  constitute  the  crime  of  nuirder  in  either  degree, 
there  nnist  be  a  violation  of  the  public  law  by  the  killing  of  a  hunian 
being  in  the  peace  of  the  p(!ople.  In  the  killing  there  nuist  be  a  uninn 
or  Joint  operation  of  act  and  intention,  and  the  deed  nmst  be  malieil>n^i 
to  such  a  degree  as  to  come  within  the  phrase  "  malice  aforelhongiit," 
either  express  or  im[)lied.  Malice  in  such  case  is  an  inference  of  fait. 
not  of  law.  Jd. 

19.  The  entiue  res  oesive  to  be  laid  hefohe  .iuky.— To  enable  the  jury 
to  return  a  true  verdict,  in  accordance  with  the  oath  to  be  taken  by 


parties  to  the 
oontt'inplatea 
1  each  otlier, 

LirARDY   PUE- 

i  iKMson  |)rac- 
sick  vvoiiiini, 
itiiiciit  wliich 
,  altliinij;h  he 
intent,    t'imi. 

'm 

TIIF.   DKADI.Y 

iansljm;j;hter, 

I'd  with  kt'io- 

or  dangerous 

Id. 

-In  tlie  triiil 
delict'  to  the 
1  lieiiig  called 
lotlies  t:hciiilii 
lurse  of  treat- 
he  del'eiMlaiit 
il  or  learning 
tliat  is,  that 
led  |)resinii|i- 
tion  was  siif- 
Id. 

imrsnanee  of 
vas  rendered 
uriu);-  an  ad- 
two  days  ill 
[coiirl,  under 
ot   snllicient 

That  tlie 
ISO:  and  the 
iproper  in- 

IKO.  /(/, 

on  that  an 
alile.  h'litf 
4(1(1 

isary  to  con- 
)un([  hv  the 
■  Id. 

proof  rests 

itence  of  all 

nuu'ih'i'  as 

Id. 

der  section 
her  degree, 
f  a  human 
lie  a  union 
e  nialiciiHis 
•elhoiiKlit," 
ice  of  fact. 
Id. 

)K'  tlie  jury 
taken  hy 


INDEX. 


G89 


tliem  soparafply,  anfl  as  an  art  of  Impartial  justice  to  tho  accused,  the 
entire  J'cs  (jisid'  should  bo  laid  before  tho  .iury,  to  be  considt-red  as  a 
whole,  without  distinction  as  to  what  party  introduced  the  several 
matters  of  evidence;  and  if  upon  such  consideration  a  rciUionable 
doubt  exists  as  to  the  guilt  of  tho  jn-isoner  of  any  crime  included  in 
the  indictment,  he  must  be  actjuitted.  Id, 

20,  Same. —  This  rule  includes  all  luatters  of  defense  gi-owing  out  of  the 
rt'.s-  (jt'iitii'  which  traverse  the  allegations  of  the  indictment;  also  that  it 
is  oiily  when  the  defendant  sets  uj)  indejiendent  matters  of  defense,  or 
matters  in  avoidance  of  the  allegations  of  the  indictment,  that  a  differ- 
ent rule  of  evidence  prevails.  Id. 

21.  Samk. —  All  facts  in  evidence  ]iroperly  constituting  part  of  the  res  geshe 
are  to  be  consiileri-d  by  the  Jiu'y  in  jiassing  ui)on  the  (|uestion  of  guilt 
or  innocence,  without  discrimination  as  to  the  rules  of  evidence, 
whether  introduced  by  the  p'rosecutor  or  the  defendant.  Id. 

MISDEMEANOR. 
See  Felony  and  Misdemeanor, 

JIOTIVE. 

Ill-feeling  as  bearing  upon,  see  Arson,  C.    Bastardy,  3. 

MURDER. 

1.  The    BEI-IKF   NECESSARY  TO  JUSTIFY  ONE    IN    TAKING     LIFE    OF    ASSAIL- 

ANT.—  If  a  person  assaulted  in  such  a  manner  and  under  such  circum- 
stances as  to  indiiie  in  him  a  reasonable  and  well-grounded  belief  that 
he  is  actually  in  danger  of  losing  hislife  or  suliering  great  liodily  harm, 
acts  under  such  belief,  he  will  be  justilied  in  defending  himself, 
whether  the  daugi'r  is  real  or  only  apparent.    I'antoiiv.  The  People 

425 

2.  Pursuer  may  slay  a  felon  if  he  resist  ou  fly.— If  a  felon  resist 

arrest  or  lly  so  that  he  cannot  jiossibly  be  apprehended  alive  by  those 
who  pursue  him,  whether  private  persons  or  public  oflicers,  with  or 
without  a  warrant  from  a  magistrate,  he  may  be  lawfully  slain  by 
tlieiu.     L'drr  v.  St((te,  4138 

3.  Same  —  But  in  such  case  it  must  appear  that  a  felony  has  uken 

COMMITTED. —  ^Vhere  a  felony  has  in  fact  been  committed,  either  an  olU- 
cer  or  a  jirivate  citizen  who  has  reasonable  ground  to  suspect  a  particu- 
lar person,  nuty,  acting  in  good  faith,  arrest  him,  without  incurring  any 
liability,  civil  or  criminal,  though  the  suspicion  prove  unfounded.  But 
if  no  olfeiise  be  in  fact  committed,  a  private  i)erson  making  such  arrest 
will  not  be  justilied  by  such  susiiicion  and  good  faith,  though  an  oHicer 
will  be.  Id. 

4.  Conspirators  jointly  liable  for  result  op  unlawful  combina- 

tion.—  When  persons  combine  to  do  an  unlawful  thing,  if  the  act  of 
one  proceeding  according  to  the  cominou  plan  ends  in  a  criminal  re- 
sult, though  not  the  particular  result  intemled,  all  are  liable.  Id. 

5.  Indictment. —  An  indictiuent  against  one  for  murdering  anotlier  with  a 

club  need  not  aver  that  the  accused  "  then  and  there  held  the  club  in 
liis  hands"  at  tho  time  of  the  killing.    Welch  v.  State,  450 

C.  Cooling  time  wuicn  reduces  murder  to  manslaughter.— The  in- 
struction that  "  when  parties,  by  mutual  understanding,  engage  in  u 
conflict  with  deadly  weapons,  and  death  ensties  to  either,  the  slayer  is 
guilty  of  nuuiler,"  is  correct  and  proper,  if  the  circumstances  be  not 
such  as  to  bring  the  case  within  the  statute  concerning  dueling.  Peo- 
ple V.  lUtnh,  45'J 

Vol.  V- 44 


m'^- 


090  AMERICAN  CRIMINAL  REPORTS. 

7.  Samk.— Where  the  court  instructed  the  jin-y  ns  follows:  "If  ;i  snfli- 

fieiit  time  elajtses,  I)et\vt>eii  a  (juarrel  and  the  a;i;reenieiit  t<>  li-iit.  to 
allow  tiie  blood  to  eool.  tlie  killing  will  he  ninnler;  "  ami  "  if.  hotwien 
the  (|uarrel  and  the  mortal  stroke  ^iven.  the  jirisoiur  takes  up  aiiv 
other  desi>;n  or  business  not  coniurted  with  the  inniiediate  nbjfcl  of 
his  passion,  or  subservient  tliereto,  it  may  be  reasonaiily  supposi'.d  Hint 
Iiis  atteiilion  was  once  ealU'd  oiX  from  the  subjt'ct  of  the  provocjilion 
and  any  sul)se(iU"nt  hi'.".::;;:  of  his  adversary,  wit liout  otlicr  provoca- 
tion.  and  with  a  deadly  weajion,  would  l)e  imu'der," — Inld,  that  sucli 
instruction  was  proper, and  was  not  a  charu;e  to  the  jury  on  matters  of 
fact.  '  ■  7,/_ 

8.  De('I,AU.\TIONS  — Res  OEST-T:.— The  declarations  of  a  party  made  while 

doin;;- an  act,  the  natiu-e,  <ii),ject  or  motive  of  which  is  the  subject  ,,( 
in(|uiry,  are  adnus.sible  in  evidence  as  a  part  of  the  r<a  (jCNlir.  if  thev 
tend  to  elucidate  or  give  character  to  the  act  itself.     Stater.  iJa/Av /• 

■m 

0.  Excursion  of  rnorER  testimony.— In  a  trial  for  murder  by  shootiny;. 
a  witness  for  the  resj)ondent  testified  to  the  situation  of  the  jiarties 
and  the  ai>|)earanc('  of  the  ri'spondent  at  the  moment  the  shot  was 
fired;  but  his  testimony  as  to  the  respondent's  declaration  accomiiaiiy- 
ing  th(>  act  was  excluded.  Htld,  that  such  declaration  was  .•idinissible, 
and.  being  excluded,  the  presumption  is  that  such  cvcliisiun  wasdetl 
riuienlal  to  the  interest  of  the  party  in  whose  behalf  it  was  ulTered. 

10.  Not  Mcci^ssviiY  to   ai.leoe  tii.vt   AccfsED  ni;i,i)  cmr.— An  imlict- 

nient  lor  nuu'der,  by  killing  with  ji  club,  is  not  bad  for  nut  aveiriiig 
that  the  accused  lield  the  chd)  in  his  hands.     Jkiiiu'n  r.  Slutc,  -IG?) 

11.  Not  NiaT.ssAUY  to  ciiahok  assait^t  an'd  battkuv.— In  an  indictment 

charging  nnu'der  in  the  tirst  degree,  it  is  unneci'ssary  to  allege  an  as- 
saidt  and  battery  on  the  body  of  tlu'  deceased  in  formal  terms.        Id. 

12.  SUFi'lciKNCY  OF  INIUCTMKNT.— It  is  not  essential   to  the  validity  of  an 

indictnu'iit  for  nuu'di"."  that  it  should  allege  that  the  killing  was  "  nn- 
lasvfully  done:  "  nor  that  the  defendant  was  "  a  person  of  sound  mem- 
ory and  discretion ;  "  nor  that  the  deceased  was  "  a  reasonable  creature 
in  lieing."     liean  ?'.  Tlie  Stafr,  477 

13.  Ac('o.MriJCE  AND  PiuxcTi'AL. —  Evidence  showing  an  accused  to  be  guilty 

as  an  accoin])lice  to  nuu'der  will  not  supi)ort  his  <'onviction  as  a  priii- 
cipal.  The  distinction  betwei-n  a  jtrincipal  olVeiidcr  and  an  ai'coni- 
j)lice  is  stated  as  follows:  The  acts  constituting  an  accomplice 
are  au.xihary  oidy.  all  of  which  may  be  an<l  are  performed  by  liiia 
anterior  and  as  ind\icements  to  tin;  crime  about  to  he  conmiitted; 
whereas  a  principal  olfender  not  only  may  jierform  some  antecedent 
act  in  furtherance  of  the  connnission  of  the  crime,  but,  when  it  is  actu- 
ally conmiitted,  is  doing  his  |>art  of  the  work  assigned  him  in  connec- 
tion with  the  plan  and  in  furtherance  of  the  common  purpose,  whetluT 
he  he  jiresent  where  the  main  fact  is  to  be  accomplished  or  not.  In 
other  wt)rds,  if  the  parties  acted  tofji'thcr  in  the  cotiiiiiisKion  of  the 
offense  they  are  principals.  If  they  aijnrd  to  commit  tlu  oll'eiise  to- 
gether, but  did  not  act  t(i(jctlicrin  its  conunission,  theoni!  who  ((ctualli/ 
committed  it  is  the  principal,  while  the  one  who  was  not  presi'iil  at  the 
commission,  and  who  wits  not  in  any  way  aiding  therein,  as  by  ketj)- 
ing  watch  or  by  securing  the  safety  or  concealment  of  the  principal, 
would  bo  an  accomplice.  To  constitute  a  principal  the  otVender  must 
either  be  i)resent  where  the  crime  is  conunitted,  or  he  must  dosonie 
act  during  the  time  when  the  otfense  is  iM'ing  committed  which  con- 
nticts  him  with  the  acts  of  coinmi.ssion  in  some  of  the  ways  named  in 
the  statute.  Jd. 

14.  Tlie  conviction  of  one  charged  with  u  crime  as  principal  in  the  second 

degree  is  contrary  to  law  wliere  there  is  no  eviden  e  of  the  guilt  of  the 
principal  in  the  iirst  degree.     Junes  v,  The  State,  oV,' 


ir  !i  snfli- 
>  li;;lit.  to 

'.    IpclWl'CIl 

I's  n\)  any 

nlijccl  of 
pOSfll  ttlllt 

ovocalion. 
•  i)rovoca- 
tliat  such 
iiiallcrs  of 

iiaili'  wliil(> 
siiliji'cf  of 
In:  if  tlifv 
r.  Widhr'r. 

y  sliootin;;, 
tilt'  [lartics 
I'  shot  was 
(•(•oin|)aiiy- 
ailniissihlc, 
HI  was  (Icl- 
•as  olVcriMl. 

An  imlict- 
lot  avcrriii;;' 
tc,  4()'.» 

iinlictmcnt 
llc'.i;i'  an  as- 
riiis.         J<l. 

lidit y  of  an 
l;'  was  '•  un- 
uiund  nicni- 
lilc  rreatino 
477 

t()b('<;uilty 
m  as  a  piin- 
an  ai'coni- 
a<'('oniiiU('t' 
iM'il  Ity  him 
ctiMiniitted ; 
anlci'cdcnt 
■11  it  is  actu- 
11  ill  coniu'C- 
Dsc,  whi'thi'i' 
)!•  not.    Ill 
■isitni  of  the 
!(■  olfcnsc  to- 
viio  iirtiKilln 
fsonl  at  tin' 
as  iiy  kct'p- 
iio  jiriiu'iiial, 
iVi'iult'i-  iiiust 
mist  do  sonic 
I  wiiicii  Will- 
ys luuiiod  in 
^  Id. 

in  the  second 
c  Kuilt  of  till' 
5.V,' 


15. 


10. 


17. 


18. 


19. 


24. 


INDEX. 


0.91 


21. 


23. 


26. 


In  the  trial  of  an  ixmfTMF.XT  FOK  MfRPKR,  it  is  error  for  the  court 
to  instruct  the  jury  that,  in  order  torehut  the  im'sumiition  of  malice 
arisiiij;  from  jmiof  of  the  killiii;>;,  it  is  incumhent  on  the  defendant  to 
show  circumstances  of  alleviation,  excuse  or  Justification  to  the  "  sat- 
ixftictioii  "  of  the  jury,  unless  the  same  appear  by  the  evidence  for  the 
state    Ingram  r.  The  State,  '  4y."> 

Kiij-ixa  OF  TWO  PKltsoxs  BY  TirE  SAME  ACT.- -The  murder  of  two  per- 
sons constitutes  two  separate  crimes,  for  I'ach  of  which  a  defendant  is 
liable  to  a  si'jiarate  iirosccution  and  trial,  though  the  killin;;  be  bv  the 
same  act:  and  a  conviction  or  ac(|uittal  in  one  case  dties  not  liar  a 
prosecution  in  the  other  on  the  filea  of  once  in  jeopanlv.  I'eople  v. 
Majom,  '  480 

Defendant  may  be  tried  for  murder  while  inderooino  life  sen- 
tence.—Allliou;;h  a  defendant  be  already  under  sentence  of  life  im- 
]irisonmeiit  for  aiiothir  crime,  it  is  within  the  jurisdiction  of  the  court 
to  try  him  for  murder.  Id. 

Res  ((est.e. —  In  a  iirosccution  for  murder  the  surrounding  circum- 
stances may  always  be  shown  as  part  of  the  res  r/c.s/u',  and,  as  such, 
the  condition  in  which  the  body  and  clothing  were  found  was  properly 
admitted  in  evidence.  /(/. 

In  cases  of  circi'Mstantial  EViDENfE  it  is  necessary  that  all  the  facts 
and  circiiiiistanci's  essential  to  a  coiivicti<in  be  proved  bej'ond  a  reason- 
able doubt;  but  it  is  not  necessary  that  each  link  in  the  evidence 
"  ri'licd  upon"  sliouhl  be  proven  beyond  a  reiisonable  doubt;  such 
facts,  if  not  proven,  should  be  discarded  by  the  jury.  The  evidence  in 
the  case  examined,  and  found  sulUcieiit  to  sustain  the  verdict  of  the 
jury.     lirailsludc  r.  .State,  499 

BUITAL  CHINDfCT  OF  ACCUSED  — PHYSICAL    CONDITION    OF  DECEASED. — 

In  a  trial  for  murder  it  is  competent,  as  bearing  upon  the  (|Uestion  of 
malice,  to  prove  brutal  conduct  of  the  ]irisoiier  toward  ihe  deceased 
for  several  days  previous  t<i  the  death,  and  may  follow  up  this  evidence 
by  showing  that  deceaseil  was  in  ordinary  health  before,  and  that  he 
complaiiie(l  of  pains  after,  the  assault.     Williams  v.  State,  512 

Murder  by  arsenic. —  In  an  indictment  charging  murder  by  the  ad- 
ministration of  arsenic,  the  precise  amount  of  the  arsenic  is  immaterial, 
if  the  facts  charged  show  that  it  Wiis  the  poison  which  caused  the  death. 
Ei}2)s  V.  The  State,  417 

Human  beixo. —  In  a  jirosecution  for  murder  it  is  unnecessarj-,  but 
harmless  to  the  accusetl,  to  prove  that  the  deceased  was  a  human 
being.  /(/, 

Skjnatuhe  of  witness  at  coroner's  inquest. — Where  one  who  is 
siibse(|uently  indicted  for  the  murder  of  the  deceased  voluntarily  testi- 
fies as  a  wiltu-ss  at  the  coroner's  iiKiuest  concerning  the  death  of  such 
deceased,  it  is  his  iluty  to  attest  his  statement  by  his  signature,  and 
such  statement,  if  it  becomes  relevant  and  material,  may  be  read  in 
evidence  against  him  at  his  trial.  Id. 

Physical  coxditiux  of  accused  at  time  of  commission  of  the 
CRLME.  —  The  declarations  of  a  jiarty  should  be  Jidmittetl  to  prove  his 
jihysical  condition  at  a  certain  time,  in  order  to  let  the  jury  consider 
whether  he  wiis,  uniler  the  circumstances,  able  to  undertake  the  exer- 
tion necessary  to  commit  the  crime.     State  v.  Maekey,  532 

The  killixg  —  Question  for  jury.—  In  a  trial  for  murder,  the  killing 
is  a  fact  to  be  found  by  the  jury  before  they  consider  the  (juestion  of 
malice;  and  after  a  plea  of  "  not  guilty,'  it  is  error  for  the  court  to 
charge  that  the  killing  has  been  proved,  leaving  only  the  other  ques- 
tion for  the  jury.  Id, 

Plea  in  abatement.— An  indictment  was  pending  against  defendant, 
charging  him  with  the  crime  of  murder.     While  so  pending  a  prelim- 


vt   . 


692 


AMERICAN  CRIMINAL  REPORTS. 


inary  examination  was  held,  and  an  information  ni(>(l,  liasod  upon  snoli 
l)ri'liniinary  examination,  and  eiiarKiiiK  tiie  same  ollciise  us  in  tlic  in- 
dictment. On  tlie  Jir.Ht  ilay  of  the  cnsuiiiK  term  of  tlic  disliici  vinui 
the  indictment  was,  with  leave  of  the  court,  iiollUd.  TlHrciiKcr  the 
defendant  wius  arraigned  upon  the  information,  and  pleaded  in  aluitc- 
ment  the  pendency  of  the  indictnu'ut  at  the  time  of  tlie  piviiniimn y 
examination  and  the  filing;  of  the  information,  Ihid,  that  liie  ]p|e;i 
was  properly  overruleil.    State  v.  McKiiint'y,  r);)8 

37.    MURDEK  ON  THE   IIIOII    SEAS  —  NEf  KSSITY    OF    rilESEltVlNtJ    oNk's    OW.V 

LIFE. — A  man  who.  in  order  to  eseai)e  death  from  huuner,  kills  ariotlirr 
for  the  puriKJse  of  eating  his  llesli,  is  f^uilty  of  nnuder;  ;iltliou-li  at 
the  time  of  tlie  act  he  is  in  such  circumstan<'es  that  ho  l)elievis,  aiiTl  Ims 
rea.sonable  Rround  for  believing,  that  it  affords  tlie  only  cliance  of  pre- 
serving his  life.     The  Queen  v.  Duiltvy  un<l  Steirits,  ,>■)!) 

28.  At  the  trial  of  an  indictment  for  murder  it  appeare<l,  upon  a  special  ver- 

dict, that  the  prisoners  D.  and  S.,  seamen,  and  the  di ase.l,  u  \mv 

between  seventeen  and  eighteen,  were  cast  away  in  a  siorni  on  tlic 
high  seas,  and  compelled  to  put  into  an  open  boat;  that  the  Imat  was 
drifting  on  the  ocean,  and  was  probably  more  than  one  tlinnsanil  miles 
from  land  ;  that  on  the  eighteenth  day,  when  they  bad  been  seven  davs 
without  food  and  five  without  watt'r,  D.  pro|)osed  to  S.  Ilial  lots  slmnlil 
be  east  who  should  lie  put  todeatb  to  save  tlie  rest,  and  that  they  alter- 
wards  thought  it  would  be  better  to  kill  the  boy  that  tlnif  lives  slumld 
be  saved;  that  on  the  twentieth  day  U.,  with  the  as>ent  ut  S..  killed 
the  boy,  and  both  D.  and  S.  fed  on  his  tlcsli  for  four  days;  that  at  the 
time  of  the  act  tiiere  was  no  sail  in  sight,  nor  any  reasonahli-  |iios|iect 
of  ndief ;  that  under  these  cireumstaiu'es  there  appeared  In  the  prison- 
ers every  probability  that  unless  tliey  then  or  very  soon  led  npon  the 
boy,  or  one  of  themselves,  they  would  die  of  s(ar\  ati(in.  JIdilth:  t, 
ujion  these  lacts,  there  was  no  jiroof  of  any  such  neres.-ity  as  con  I 
justify  the  prisoners  in  killing  the  boy,  and  thai  they  wei(i  guilty  of 
murder.  '  'Jd. 

29.  Rioter  uesi'onsiui.e  for  every  illeoal  act  coMiMnrr.i).—  Where,  at 

and  before  the  killing,  there  wius  a  great  riot  by  many  persons  whoeoni- 
juKsed  a  mob,  and  the  accused  was  (jiie  of  them,  and  look  p.dl  in  the 
riot,  inciteil  it,  and  was  in  great  i>art  responsible  therefor,  he  w  as  liable 
for  each  and  every  illegal  act  committed  ijy  such  mob,  and  uhat  was 
said  and  done  bj'  the  mob  or  any  of  its  members  was  proper  evidenre 
on  the  trial  of  the  defendant,  unless  it  ajipear  that  he  left  or  abandoned 
them  before  the  homicide  was  committed.    Melicie  v.  The  State,  Uti 


NEW  TRIAL. 


4. 


SurPLKMENTAL  MOTION  ENTERTAINED.  —  The  trial  Court  may  ellterlaill  a, 
supplemental  motion  for  a  new  trial  at  the  term  the  linal  jndgnienl  is 
pronounced,  even  if  filed  after  such  judgment,  in  cases  where  the 
motion  is  based  on  causes  discovered  after  rendition  of  the  judgment. 
Dennis  v.  State,  Hi'J 

Evidence  newly  discovered.—  Where  there  is  newly  discovered  evi- 
dence which  consists  of  statements  made  by  the  witness  upon  whose 
testimony  the  accused  was  convicted,  and  such  statements  elfeeUially 
tend  to  withdraw  such  testimony,  a  new  trial  ought  to  be  granted.  Id. 

IMPEACHINO  AND  CUMULATIVE  EVIDENCE.— Evidence  which  destroys  or 
renders  illegible  the  testimony  on  which  a  conviction  was  had  is  not 
merely  cumulative,  nor  is  it  simply  impeaching  evidence.  Id, 

Discretion. —  A  motion  for  a  new  trial  is  addressed  to  the  sound  dis- 
cretion of  the  court  before  which  it  is  made,  and  the  overruling  of 
such  a  motion  will  not  be  reviewed  unless  there  appears  to  have  been 
a  plain  abuse  of  such  discretion.    State  v.  Maekey,  •i'i'i 


INDEX. 


G93 


OBSCENE  PUBLICATIONS. 

In  nn  imliriniont  for  ]uil>lisliinf?  obst'ono  niattor,  althougli  the  niattor 
roloiTctl  to  iK'cd  not  l)u  htatcd  at  Iciigtli,  there  should  he  Buch  an  appro- 
priate dcscriitiou  as  to  identity  tlie  fmhlieation  in  which  it  api)eared. 
Com.  V.  Wriyht,  571 

ORDINANCE. 

1.  A  ninnicipal  forpnration  lias  no  power  to  pass  an  ordinance  declaring  n\\ 

jjiililic  picnics  and  open-air  dances  to  be  nuisances,  regardless  of  the 
character  of  such  gatherings.    J'uijer  v.  Vilhtgc  of  Desplainea,  573 

2.  City  ciiautk.u—  SIektings  of  city  counxil. — A  city  charter  requiring 

the  city  council  to  liold  "stated  meetings,"' but  making  no  provision 
as  to  thi'  maimer  in  whic-h  tiie  time  for  tiie  holding  of  such  meetings 
shnll  be  lixcd,  tiie  city  council  may.  upon  simple  motion,  prescribe  such 
time,  and  the  time  fi>r  tiie  holding  of  stated  meetings  maybe  changed 
by  the  a<ti(>n  of  the  city  con  nil  alone,  upon  mere  motion,  although  it 
had  been  previously  iixeil  by  a  formal  resolution,  approved  by  the 
mayor,  and  i)ublishi'd.     State  v.  Kantler,  581 

3.  That  tart  of  oudisaxck  hicktuictiso  sale  of  liquoe  to  districts 

DKSIONATKI)  HY  MAYOR,  UNCOXSTITUTIONAL. —  A  city  Ordinance!  jiro- 
hihiting  tlie  sale  of  li((Uor  witliout  a  license,  and  im])osing  certain 
rcgnlalions  upon  the  business,  among  wliich  was  one  restricting  it  to 
certain  (li^-h•icts  of  the  city  io  be  (l(si(/)i(itc(l  t)ij  tite  tmijiur,  considered 
unconstitulioiial  as  to  the  last-named  attempted  restriction,  but  other- 
wise valid.  Id. 

4.  Amendment  of  ordinance. —  A  subseijuent  amendment  of  the  uncon- 

stitutional portion  of  the  ordinance  —  tiie  amendment  designating  the 
districts  w  it  liin  which  only  the  business  might  be  authorized  by  license — 
held  a  valid  amendment.  Id. 

5.  Sale  outside   of  district. — Under  such  an  ordinance,  selling  intox- 

icating liquor  outside  of  such  license  districts,  witliout  a  license,  con- 
stituted the  prescribed  olfense  of  selling  without  a  Uceiise.  Id. 


PERJURY. 


sound  dis- 

I'lTlllillg  of 

I  have  hcea 
532 


1.  Insufficiency  op  indictment.—  An  indictment  in  which  the  defendant 

is  charged  witii  having  committed  the  crime  of  perjury  "by  falsely 
swearing  to  material  matter  in  a  writing  signed  by  him,"  is  insulH- 
cient,  even  after  verdict  of  guilty.     State  v.  Mace,  588 

2.  Same  — ]MusT  snow  that  a  crime  has  been  committed.—  The  legis- 

lature cannot  make  valid  and  sutlicient  an  indictment  in  which  the 
accusation  is  not  set  forth  with  sufHcient  fullness  to  enable  the  accused 
to  know  with  reasonable  certainty  what  the  matter  of  fact  is  which 
he  must  meet,  and  enable  the  court  to  see,  without  going  out  of  the 
record,  that  a  crime  has  been  committed.  Id. 

?•.  Same. —  The  form  of  an  indictment  for  perjury  prescribed  in  R.  S.,  ch. 
122,  sec.  5,  is  not  sulKcieiit  to  meet  the  recpiirements  of  the  constitu- 
tion. Id. 

4.  Towns  are  recjuired  by  statute  to  elect  annually  three,  four  or  five  listers, 
who  constitute  a  board,  a  majority  of  which  is  essential  to  legal  ac- 
tion ;  one  acting  alone  has  no  jurisdiction ;  his  acts  would  be  void ; 
hence,  an  indictment  charging  a  lister  with  perjury,  in  that  he  had 
Violated  his  olHcial  oath,  is  defective  without  allegation  of  the  election 
of  the  reciuisite  number  of  listers,  and  that  they  qualified  and  acted  as 
sucli.    State  v.  Peters,  591 


G94 


ameiiic;an  cui.minal  reports. 


PERSONAL  PHOi'EltTY. 

Growino  chop.— a  K«-"winK  tTop  of  Kiaiii  is  ixTsonal  pn.n.-ity  witl.iii 
the  meuuiug  of  tliis  MtaluU'.    t'itdte  v.  Williuins,  a-l'i 

PLEA  IN  ABATEMENT. 

ScO   MUUUER,  20.      PUALTKK,  0. 

PRAtlTlCE. 

1.  An  onlor  of  court  fixing  tlu'  limo  of  sciitt'iicc,  after  conviction  of  fduiiv, 

is  not  an  aiUM'ainhli!  order,  and  an  exception  taiven  to  such  order,  lic- 
cuuse  it  provided  for  a  sentence  before  the  time  i)rovided  l)v  law,  is  nut 
rcviewalile  in  tiiu  sujirenie  <ourt.    VVo^^/c  v.  Mrsn,  "  :,ij> 

2.  Examination  or  witnkssks    not  iiekouk  (iUAXD  .hkv.— DefiiKlniit 

was  indicted  for  l)urj;lary  liy  tiie  unuid  Jury,  witiiout  exiiiuiiijitidii  <>{ 
witnesses,  hut  on  niinutesof  tcstiiuony  Kivei'i  liefore  acoiiiiniltiii-  ina; 
istrate  on  preliminary  examination,  whicli  were  returned  to  tTiec'' 
trict  court    without  tlii'  certificate  re(|uired  hy  ( 'ode,  ,^  IJl'.',  jiiid 
district  attorney  failed   to  serve  defciidanl  with  any  notice  slat  in;; 
niunea  of  the  witnesses  whom  ho  would  examine  in  support  of  tl^e  in- 
dictment, and  the  substance  of  the  testimony  they  would  j;ivo.    On 
the  trial  di-fcndant  ohjeiteil  to  the  examination  o'f  the  witnesses  he- 
cause  they  had  not  i)een  sworn  ami  examined  before  the  ;;rand  jm\ , 
and  the  i)aper  purport  in;;   to  bi' the  minutes  of  the  evidence  was  niit 
authenticated  by  the  cerlilicate  of  the  magistrate.     //(/(/,  that  the  state 
was  entitled  to  uxamino  the  witnesses,  in  support  of  tlie  indi(  Inunt. 
Slate  i\  Keppcr,  ,-,iji 

3.  REt'ElVINa  VEUDICT  ON  SUNDAY— AliSKNX'K  OF  DKl'KNDANT  AND  C    fNSKI,— 

PoLUNO  JUKY. —  The  jury  returned  their  verdict  in  this  case  on  Sundav. 
in  the  absence  of  the  defendant  and  his  <'ounsel,  and  witiiout  eitlur  of 
them  being  called  or  notified,  and  the  judye  thereupon  discharged  the 
jury  from  further  consideration  of  the  case.  At  the  ojiening  of  the  ( mnl 
on  the  next  day  the  defendant  asked  the  court  to  recall  the  jury  and 
allow  him  the  oi)portunitv  of  having  it  polled,  which  application  the 
court  denied,  liie  defendant  also  moved  that  the  verdict  be  set  aside, 
and  stricken  from  the  files;  that  the  jury  be  recalled  and  directed  to 
return  a  proi)er  verdict.  Which  motions,  as  wel!  •)«  a  motion  for  a  new 
trial,  were  overruled.  IleUl,  that  neither  the  defendant  nor  his  counsel, 
in  the  absence  of  notice,  were  bound  to  be  in  attendance  ui)on  the  c(,art 
on  Sunday,  on  the  coming  in  of  the  jury :  and  held,  farther,  that  on  ac- 
count of  the  action  of  the  court  in  discharging  the  jury,  and  refusing 
to  poll  the  jury  in  the  presence  of  the  defendant,  the  judgment  nmst 
bo  reversed,  and  a  new  trial  granted.    State  r.  Muir,  .VJ!) 

4.  Plka  upon  akuaionmf.nt  — By  whom  to  \\k  made  — Rf.adixcj  indk  t- 

MENT. —  Under  the  statutes  of  Colorado  ((Jen.  St.,  S  U54)it  isinnnali'rial 
whether  the  prisoner's  plea,  upon  arraignment,  be  made  by  the  jiris- 
oner  himself  or  liis  counsel,  and  it  is  not  essential  that  upon  arraign- 
ment tlie  indictment  be  reatl  to  him  at  length  when*  a  true  copy  of 
such  indictment  luis  been  given  him.    Miniek  v.  I'eupte,  20 

5.  Notifying  the  defendant  as  to  witnesses  auainst  him.— The  jirose- 

cution  is  not  confined  to  those  witnesses  indorsed  upon  the  back  of  tlie 
indictment  on  the  trial  of  the  case,  but  may  introduce  others,  by  the 
indulgence  of  the  court  exercLsing  its  wise  discretion.  Id. 

6.  At  what  time  ust  of  petit  juroks  should  be  furnished  defend- 

ant.—  Provided  defendant;  before  his  trial,  was  furnished  with  a  list 
of  the  |)etit  jury.  Ids  conviction  cannot  be  invalidated  by  the  fact  that 
furnished  before  his  arraignment,  uule»is  he  c 


that  he  has  been  injured  thereby. 


Id. 


INDEX. 


005 


7,  CorNsn,  or  rnosrci'TiNO  witnkss.— In  a  iirosorution  by  i?ifoniiatit>ii 
for  an  assault  ami  l.aUiry.  cniiiiscl  may  lio  finiiloycd  to  assist  in  tin* 
trial  of  IIr'  I'aso  l»y  tlii'  juosfciitinf;-  witiu'ss.    ,S7((/('  c.  Minit'jniiii'ri/,   oi 

S,  Auiif.Mr.NT  OK  ('(ifNsKr.,— Tiic  ninarlvs  of  till' iiros('cullii;;attorni'y  were 
not  boyouil  the  scopo  of  lt'>;itiiiiat(;  mj^unicnt.     Mercer  v.  Stttte,       )i\)2 

9.  Practk  i;  ON  iM.K.A  OK  KoiiMKii  ooNvrcTiON.— No  apiH'al  lies  from  an 
order  (li-nvini;  a  dcffnilaiit,  in  a  criminal  action,  a  new  trial  on  a  nlea 
of  former  conviction,  and  the  court  may  procct'd  to  try  the  defendant 
on  the  cliar^c  of  munier,  tliouKh  an  aiiiieal  lias  been  taken  on  that 
ground  and  Ih  still  iiending.     Pvoim;  v.  MajorK,  48(1 

10.  Dim-  ok  PAitTi('L'T,AUs,— A  motion  for  a  hill  of  particulars  ia  addressed 

to  the  discretion  of  the  court.     State  r.  XiKjIe,  -i-i'i 

11.  AssisTixo   DISTUK'T  ATTouNK.Y.— The  district  attorney  in  a  criminal 

trial  may  have  the  assistance  of  counsfl  employed  on  private  account. 
Uradxltaw  v.  State,  499 

12.  Rk.TIKX  ok  INDKT.MKNT.— Where  it  api)eav     from  the  record  that  a!i 

indictment  was,  on  a  certain  day.  retuiJied  into  open  court  hy  the 
Kraiid  ,jmy.  indorsed  "  a  true  hill '"'  hy  their  foreman,  the  return  i.s  .suf- 
licientiy  shown.     Kppx  r.  The  State,  417 

13.  AiiSKNci':  op  piusonhr  on   motion  to  quash   inoictmknt.— It  ia  not 

error  to  lu-ar  arj;nment,  on  a  motion  to  (piash  an  indictment,  in  tlK! 
ahseiice  of  the  prisoner.  -^f'. 

14.  WiTHDUAWAl,  OK  Pl.K.A.— In  the  absence  of  a  sliowin-;  of  cau^e,  tlie 

grantinj:;  or  withholding;;  leave  to  withdraw  a  plea  of  not  yuilty  rests  in 
the  discretion  of  the  trial  court.  Id, 

1.5.  Additional  namks  ok  avitnkssks.— Tho  court  may,  in  its  discretion, 
permit  the  county  attorney  to  indorse  the  names  of  witnesses  on  the 
uiformation,  even  if  tho  trial  has  commenced.    State  v.  MeKiiuieij,  588 

10.  Arraionmkxt.— The  record  of  a  conviction  for  crime  must  show  that 
the  defendant  was  arraij^nud  on  the  indictment.     Ilanmu  c.  State,  Q'i~t 

17.  Where  defendant  moves  for  and  procures  a  new  trial  on  account  of  de- 

ft'ctive  information,  he  waives  his  right  to  plead  former  jeopardy. 
State  V.  Hart,  00 

18.  Effect  of  plea  of  former  conviction  after  demurrer  thereto  sustained. 

HiojIieH  V.  People,  80 

Jury  drawn  before  ^aking  effect  of  law  changing  district,  see  Jury. 


PRIVILEGED  COMMUNICATIONS. 

1.  All  communications  between  a  solicitor  and  his  client  are  not  privileged 

from  disclosure,  but  only  those  passing  between  them  in  ])rofessional 
confidence  ami  in  the  legitimate  course  of  professional  employment  of 
the  solicitor.  Communications  made  to  a  solicitor  by  his  client  before 
the  commissicm  of  a  crime,  for  the  purpose  of  being  guided  or  helped 
in  the  commission  of  it,  are  not  privileged  from  disclosure.  Tlie  Queen 
V.  Cox  and  liailton,  140 

2.  C.  and  11.  were  i)artners  under  a  deed  of  partnership.    M.  brought  an 

action  against  R.  &  Co.,  and  obtained  judgment  therein,  and  issued 
execution  against  the  goods  of  R.  The  goods  seized  in  execution  were 
then  claimed  by  C.  as  his  absolute  property,  under  a  bill  of  sale  executed 
in  his  favor  by  R.  at  a  date  subsequent  to  the  above-mentioned  judg- 
ment. An  interpleader  issue  was  ordered  to  determnie  the  validity  of 
the  bill  of  sale,  and  upon  the  trial  of  this  issue  the  jiartnership  deed 
■was  produced  (m  C.'s  behalf,  bearing  an  indorsement  purporting  to  be 
a  memorandum  of  dissolution  of  the  said  partnershii),  prior  to  the 


C96 


AMERICAN  CRIMINAL  REPORTS. 


If. 


comnionceinont  of  the  action  by  M.  Subscqiiontly  0.  jind  R.  wore 
tried  and  niiiviftcd  upon  a  ohai'so  of  consijiriii};:  t<>  <lcrr!iiii|  ^I.,  ;iiiil 
ujiontliat  trial  tiiociisefor  tlioiirosrcutiim  was,  tiiat  the  1)111  of  siiic  \v:is 
fraudiili'iit,  that  the  jiartnership  hi'twci'ii  ]{.  and  (!.  was  in  tiiitli  snlj- 
sistiiiK  when  it  was  ;;iven.  and  that  the  inenioiiindnni  of  dissohitiim 
indorsed  on  tlio  deed  was  jnit  there  alter  M.  had  olilained  judvMH'iit. 
and  fraiKlulently  anteilatod,  the  wliole  transaction  Ininii.  it  was  alle^iil, 
ii  fraud  intended  to  cheat  M.  of  the  fruits  of  liis  e.xei'utioii,  L'|ion  tiie 
trial  a  solicitor  Wius  called  on  behalf  of  the  proserntion  to  ])r(ive  tlmt, 
after  JI.  liad  obtained  tlie  .jnd<?nient,  C.  and  If.  together  con^nKed  him 
JUS  to  how  they  conld  defeat  M.'s  Jiidt-'inent,  and  as  to  wliether  a  hill 
of  sale  could  lej^ally  be  executed  by  it,  in  favor  of  <;.  so  as  to  defeat 
Kuch  JndKinent.  and  that  no  suj^j^estion  was  then  made  of  any  dissolu- 
tion of  i)arlnersliip  havinj;  taken  place.  The  reception  of  this  evi- 
dence bein^  objeiied  to.  on  the  ground  that  the  coMiniunication  was 
one  between  solicitor  and  client,  and  jtrivilei^ed.  the  evidence  was  re- 
ceived, but  the  (juestion  of  wliether  it  was  properly  received  w;is 
reserved  for  this  court,  llild,  l)y  the  court,  tliat  the  evidence  was 
properly  received.  Id. 

RAPE. 

1.  R.VPK  ox  rxcuASTE  WOMAN  —  Resistantk  rkqi'Isti'k. —  Tn  a  jirosecution 

for  rape,  it  is  necessary  for  tlu;  state  to  ^,how  that  tlie  iinisccntiM;;'  wit- 
ness resisted  with  all  the  means  within  lier  |io»ver;  but  the  nature  of 
the  means,  and  the  extent  of  the  resistance,  nuist  depend  upon  tlie  pe- 
culiar circumstances  of  each  particular  case.     ^\iiili'isiiii  r.  Slalr,   (Ull 

2,  At  common  law,  a  lioy  under  tlie  age  of  fourteen  yt  ars  is  presimied  to 

be  incapable  of  conuuitting  the  crime  of  raiie.      Willlnnts  l:  TIic  IShitr. 

(iVi 

RECEIVING  STOLEN  (}()OI>S. 

1.  Sufficiency  of  indictmf.nt. —  An  indictment  under  subchapter  4.  sec- 

tion ;i'.).  of  chaiiter  UiM,  I/iws  of  1S()S  cliaigiiig  tliat  the  <lefeii(lant 
"feloniously  did  bviy,  ri!ceive  and  have,  and  did  then  and  lii.Te  aiil  in 
the  concealuuMit  of  certain  stolen  jiroperiy  of,"  etc..  knowing  the  said 
property  to  have  been  feloniou.-ily  .stolen,  etc.,  is  gooil,  tii<-'  wor<ls  "and 
have"  being  mere  surplusage,  and  not  liable  to  misleael  the  defendant. 
Bradley  i:  The  State,  619 

2.  Offenses  wnuii  .may  be  joinkd. —  When  a  statute  makes  eitlier  of  two 

or  more  distinct  acts  connected  witii  the  same  general  ollense,  and 
subje<-t  to  the  same  punishment,  indictable  as  distiiK  t  crimes,  they 
may,  when  committed  by  the  same  person  at  the  same  lime,  be  coupletl 
in  one  count,  and  constitute  hut  one  ollense.  Id. 

RIOTS. 

Rioter  nr:spoNsini.E  fok  every  illeoal  act  committi'.o.— AVhcre,  at 
anil  before  the  killing,  there  was  a  great  riot  by  many  persons  who 
composed  a  mob,  and  the  accused  was  one  of  them,  and  took  part  in 
the  riot,  incited  it,  and  wius  in  great  part  responsible  therefor,  lie  wius 
liable  for  each  and  every  illegal  act  committed  by  such  mob,  and  what 
wa.s  said  and  done  by  the  mob  or  any  of  its  members  was  proper  evi- 
dence on  the  trial  of  the  defendant,  unless  it  appear  that  he  left  or 
abandoned  them  before  the  honuciile  was  comuiitled.  Meliae  v.  The 
State,  «-- 

ROBBERY. 

1.  Violence.— The  violence  which  is  essential  to  the  crime  of  robbery 
nnist  be  concomitant  with  the  taking  of  property  from  the  person  of 
another.    Hanson  v.  State,  025 


INDEX. 


G97 


!.  Avorc 
M.,  iiml 
nil'  w;»--< 
\{\\  suV)- 
sn\uVu>n 
l./iucnt. 

J|.onthi! 

to    lltf<'i>t 

V  dissdUi- 
"tlii^  fvi- 
■atioii  wiis 

acuec  Nv;>'^ 
id. 


i,vosoc\ition 
i„.  luiuur  111 


2.  The  assault. —  On  tho  trial  of  .1  person  indicted  for  the  crime  of  as- 

sault with  intent  to  rob,  it  is  error  to  refuse  to  ciuuge  that  violence,  in 
order  to  constitute  the  crime,  must  not  be  subsequent  to  the  attempt  to 
take  tho  propertj'.  /(/. 

3.  CoNVK'Tiox  OP  ASSAULT  AND  BATTERY. —  Indictment  for  an  assault  with 

intent  to  rob  will  support  a  conviction  for  assault  and  battery,  and  it  is 
error  to  refuse  to  so  charge.  Id. 

4.  Arraignment. — The  record  of  a  conviction  for  ci'ime  must  show  that 

the  defendant  was  arraigned  on  the  indictment.  /'/. 

SABBxVTII  BREAKING. 

Door  left  partlvlly  open  or  unlocked.— To  commit  the  offense  of 
Sabbatli-breaking  by  keei)ing  a  store  dcjor  open  on  Sunday,  it  is  not 
necessary  to  keep  it  so  opcncMl  as  to  induce  customers  to  enter  and 
trade.  It  is  suliicient  if  the  door  is  partially  open  or  intentionally  left 
uid(X'ked,  so  that  any  person  may  enter  as  reailily  as  if  left  open.  Or 
if  it  is  opened  to  tiie  knocking  of  a  stranger,  and  he  admitted  or  in- 
vited in,  this  is  a  keeping  open  witliin  the  pi'ohibi  ion  of  the  statute. 
Seelig  ?".  Stdte,  029 

SEARCH  WARRANT. 

ni:sCRlPTlON  of  rUKMisES. —  A  search  warrant,  which  described  the  prem- 
ises tn  lie  searclied  as  ''a  certain  iiuilding,  the  cellar  undir  the  same, 
and  till-  out-buildidgs  within  tlie  curtilage  thereof,  situate,"  etc.,  does 
not  autliorize  the  search  of  another  Imikling  situated  on  an  adjoining 
lot,  separated  by  a  fence,  but  connected  by  a  co\ered  passage-way. 
Com,  i:  Intoxicatiiiy  Liqitom,  427 


',U.leu>Uiiit 

4l„.,v  -.ud  i'> 

.,  tlie  said 

.words  "and 

he  delen.hmt^ 


.UheroftNNO 

..iVense,  a"'l 

,.rimes.  tlu'V 

■me,becoupW'>l 


il 


SENTENCE. 
Sec  Costs,  1.    Practice,  1. 

SLANDER. 

Under  the  slander  act  of  1809,  slander  is  a  felony,  and  not  a  misde- 
meanor, ami  it  is  not  left  to  the  court  or  jury  to  say  which  it  is.  iitdte 
V.  Wulhr,  681 

Tho  legislature  has  the  right  to  provide,  in  felony  cases,  alternative  pun- 
ishments, to  be  left  at  the  discretion  of  the  court,  of  such  nature  as 
belong  to  misdemeanors;  and  this  discretion  to  mitigate  the  punish- 
ment does  not  alter  the  nature  of  the  crime.  Jd. 


\ 


p__  Where,  at 

.^\   took   V 
'Vevefor,  l»e  ^yi>-'^ 
mob,  and  what 

was  V\"l'}\^\ ,. 

that  he  h  ftor 

McHM  V,  The 


Irime  of  rohhovy 
I       4ii..  nevsonot 


SUNDAY. 
Receiving  verdict  on  Suntlay,  see  Practice,  X 

THREATS. 
See  Arson,  5. 


VERDICT. 

DrxiREES  OF  (RIME  —  GENERAL  VERDICT. —  On  the  trial  of  an  indictment 
for  murder  in  the  lirst  degree,  a  gent-ral  verdict  of  gnilty  is  proper, 
he  Penal  Code  (sec.  10)  declaring  that  when  "a  crime 


The  provision  of  the 


« 


698  AMERICAN  CRIMINAL  REPORTS. 

is  distingnished  into  dcgroos,  tho  jury,  if  tlioj'  convict  tlic  prisoner. 
must  find  the  degree  of  tlie  crime,"  must  be  construed  with,  and  is 
(jualifled  and  restricted  by,  sections  -loO,  4;!T,  authorizing  a  general  vei- 
dict  of  "  guilty  "  or  "  not  gailty,"  and  declaring  tliat  such  a  verdict 
"  imports  a  conviction  or  actjuittal  of  the  otleiise  charged."  I'eoph  r. 
Rugg,  2  IT 

2.  Same  — When  essential  to  find  deouee.—  It  is  essential  to  find  the 

degree  of  crime  only  when  the  jury  lind  the  defendant  guilty  of  some 
degree  other  than  the  one  charged  in  the  indictment.  Id. 

3.  Practice  —  Special  veudkt.— Pub.  Stat.  R.  I.,  cap.  204,  sec.  34,  i>ro- 

viding  that  "  in  any  case  the  court  may,  and  ui)on  the  recjuest  of  either 
party  it  shall,  direct  the  jurj-  to  relnrn  a  special  verdict  u|)()n  an  issii,. 
submitted  to  the  jury,"  does  not  ai)ply  to  criminal  juosecutions.  ,S7'//. 
V.  Angle,  "  ;:;{j 

4.  Assault  with  intent  to  no  okeat  bodily  harm.— Where  the   evi- 

dence so  justitii's,  a  verdict  of  "  guilty  of  assault  with  intent  to  coin- 
mit  a  great  bodily  injury  "  may  be  found  on  an  indictment  for  murder. 
State  V.  Parker,  ;nt 

•").  Receiving  verdict  i)ri!iN(}  rk(  i:ss.  technical  eruor. —  When  wilhuut 
objection,  after  the  court  had  ailjoiu'ueil  (o  the  next  Miorniiig,  a  vei- 
dict  was  ri'eeived,  opeiiecl  aritl  read:  and  tbeii,  at  the  iiistiuiee  of  de- 
fendant, the  jury  were  polled,  liild,  that  although  the  verdict  w;i-; 
not,  as  the  statute  provides,  "rendered  in  open  court,"  yet  the  error 
was  simi)ly  a  technical  one,  and  that,  under  section  2!»l{  ol'  the  Code  ni' 
Criminal  Proceilure,  it  must  be  disregarded  on  appeal.  ,SI<ilr  r, 
MeKhinei/,  '>■','■* 

<).  Pri:seXCE  (IE  DEI'I'.NDANT.  —  In  a  criminal  case  the  presence  of  the  d,  - 
fendant  at  the  rendition  of  the  verdict  is  essential  to  the  validiix 
of  till' conviction.     Smith  c.  The  I'eopU',  til") 

ScL-  Attempt  to  Rape,  ?>. 

Receiving  verdict  on  Sunday,  .see  Practk  E,  o. 


WITNESSES. 

1.  Until    assailed,  proof  of  good  character  of   witness  is   inadmissibli>. 

Peoiile  V.  Jiii-sh,  1-->'J 

2.  The  com't  may  in  its  discretion  permit  prosecutor  to  indorse  the  nanies 

of  witnesses\>n  in<lictment.     Slate  c.  Meh'iiiiie//,  M"* 

'•].  E.vamination  of  witnesses  not  before  grand  jury.     Slate  r.  Kej>2>e:',  ■)','-i 
Impeaching  character  of  witness,  see  Practici".   M). 
Contradictory  statements  of  witness,  see  Practice,  31. 


I 


i 


ict  tlio  prisonor. 
lU'd  witli.  and  is 
IK  a  Kt'iU'iiil  vci- 
.  sucli  a  vi'nlict 
god."  Feoplc  r. 
SIT 

nitial  to  find  the 

it  K^-iilty  of  sDiiif 

hi. 

204,  HOC.  34.  i.n,- 
roiiucst  f)f  I'ithcr 
ict  ujiDii  an  issur 
twofutions.    Stall 

I'm')'' 

Where  the  ovi- 
th  intent  to  eoni- 
nent  tor  uiunlrr. 

—  \Vhen  withuiii 

morninj;',  a  vii- 

le  instance  of  di- 

tlu'    verdict    \v;i-< 

rt,"  yet  the  eimr 

It;}  of  tlie  Code  (if 

aiipeal.     Slati'   ''. 

.'ills 

'sence  of  tlie  il.  - 

il  to  tlie  vaUdiiv 

Ol.J 


is   inadiiiissihlc. 
4.VJ 

iidorse  the  nanus 
(/('  V.  Kcpjta;  .V,M 


